US 168921692v6

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’ RESPONSIVE CLAIM CONSTRUCTION BRIEF 
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TABLE OF CONTENTS 

Page 

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

II. Argument ........................................................................................................................ 1

A. ’097 Patent Terms ................................................................................................ 1

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

a. Nordic does not address why lexicography does not apply ............ 2

b. The intrinsic evidence does not support Nordic’s 

construction .................................................................................. 4

c. The extrinsic evidence also does not support Nordic’s 

construction .................................................................................. 6

2. “the middleware layer” (Claims 20-21) ..................................................... 9

a. The implicit antecedent basis is “the middleware software” ........ 10

b. Nordic provides no support for its construction ........................... 16

B. ’095 Patent Term: .............................................................................................. 17

1. “call initiation signals” (Claims 16, 30) .................................................. 17

III. Conclusion .................................................................................................................... 20

 
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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Bicon, Inc. v. Straumann Co., 

441 F.3d 945 (Fed. Cir. 2006).............................................................................................. 17 

Dell Inc. v. Acceleron, LLC, 

818 F.3d 1293 (Fed. Cir. 2016) ............................................................................................ 17 

Energizer Holdings, Inc. v. Int’l Trade Comm’n, 

435 F.3d 1366 (Fed. Cir. 2006) ........................................................................................ 9, 12 

Eon Corp. IP Holdings v. Silver Spring Networks, 

815 F.3d 1314 (Fed. Cir. 2016) ............................................................................................ 17 

Gree, Inc. v. Supercell Oy, 

No. 2:19-CV-00070-JRG-RSP, 2020 WL 2332144 (E.D. Tex. May 11, 2020)..................... 15 

Kopykake Enters., Inc. v. Lucks Co., 

264 F.3d 1377 (Fed. Cir. 2001) .......................................................................................... 3, 8 

Lodsys, LLC v. Brother Int’l Corp., 

No. 2:11-CV-00090-JRG, 2013 WL 2949959 (E.D. Tex. June 14, 2013) ............................. 18 

Martek Biosciences Corp. v. Nutrinova, Inc., 

579 F.3d 1363 (Fed. Cir. 2009) .............................................................................................. 5 

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

521 F.3d 1351 (Fed. Cir. 2008) ............................................................................................ 17 

Phillips v. AWH Corp., 

415 F.3d 1303 (Fed. Cir. 2005) (en banc) ..................................................................... passim

SkinMedica, Inc. v. Histogen Inc., 

727 F.3d 1187 (Fed. Cir. 2013) .............................................................................................. 8 

Smartflash LLC v. Apple Inc., 

77 F. Supp. 3d 535 (E.D. Tex. 2014) ................................................................................... 15 

Summit 6 LLC v. HTC Corp., 

No. 7:14- CV-00014-O, 2015 WL 11117868 (N.D. Tex. Mar. 21, 2015) ............................. 15 

Superguide Corp. v. DirecTV Enter., Inc., 

358 F.3d 870 (Fed. Cir. 2004)................................................................................................ 3 
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Toro Co. v. White Consolidated Industries Inc., 

199 F.3d 1295, 53 USPQ2d 1065 (Fed. Cir. 1999)................................................................. 8 

Trover Grp., Inc. v. Dedicated Micros USA, 

No. 2:13-CV-1047-WCB, 2015 WL 1263358 (E.D. Tex. Mar. 19, 2015) .............................. 9 

Other Authorities 

MPEP 2111.01 ............................................................................................................................ 8 
US 168921692v6

I. INTRODUCTION 

Nordic’s Opening Brief (Dkt. No. 35) is a winding path of contradiction and diversion. For 

example, Nordic states that the “patent claim construction process begins with the language used 

in the claims,” but then ignores the language of the claims that directly contradicts its construction. 

Id. at 5; compare Samsung’s Opening Br. (Dkt. No. 34) at 10-11 (demonstrating how the 

dependent claims cannot be reconciled with Nordic’s proposed construction of “call initiation 

signal”). Nordic further states that it follows “black letter law” and that one must look at the 

specification (Nordic’s Opening Br. at 1), but it then does not cite (much less address) the key 

disputed lexicography in the specification for the term “middleware software” for the Court to 

consider. Id. at 6-7; compare Samsung’s Opening Br. at 5-6 (discussing clear instance of 

lexicography). 

Indeed, throughout its Opening Brief, Nordic says it is applying the law correctly, and says 

it is citing the relevant evidence, but the proof is in the pudding. And it is plain when tested that

what Nordic has is a mishmash of misframed (and missing) evidence and misapplied law. 

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” 
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a. Nordic does not address why lexicography does not apply 

During the Parties’ meet-and-confer process, Samsung made clear to Nordic that the basis 

of Samsung’s proposed construction was lexicography. See Ex.1

 1 (October 16, 2020 email from 

Nordic’s counsel to Samsung’s counsel] (summarizing parties’ meet-and-confer and noting that, 

e.g., “[p]arties disagreed as to whether this was regarding lexicography or just an embodiment in 

the argument in this term.”). 

In Nordic’s Opening Brief, however, Nordic inexplicably fails to address why lexicography 

should not apply.2 Instead, Nordic summarily accuses Samsung of attempting to “import one 

embodiment” into the claim language—and does not discuss any evidence as to why. Nordic’s 

Opening Br. at 8. 

This bare accusation against Samsung is not only incorrect, but bizarre because it is Nordic 

that is relying on a specific embodiment. In particular, Nordic states that its construction is 

supported by the specification, which “specifies” what middleware software “provides”: 

Nordic’s Opening Br. at 6 (emphasis added). 

1

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

herewith. 

2

 To be clear, lexicography is not a rebuttable presumption. When found to exist (as should be 

here), it controls. See, e.g., Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc) 

(holding that if the specification reveals “a special definition given to a claim term by the patentee

that differs from the meaning it would otherwise possess[,] . . . the inventor’s lexicography 

governs”) (emphasis added). 
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But what Nordic failed to inform the Court, and what it excised from its quote, are the three 

words that start the sentence: “In one embodiment”: 

’097 Patent at 10:8-10 (emphasis added). 

In addition, the paragraph in which Nordic’s cited sentence occurs begins with “[a]s shown 

in FIG. 5....” Id. at 9:63 (emphasis added). And, after this paragraph, the specification continues 

to discuss Fig. 5. See id. at 10:33, et seq. Indeed, apart from the excerpt in the specification 

discussing Fig. 5, Nordic also points to Fig. 5 itself and that specific embodiment’s use of 

middleware “in application and service discovery.” See Nordic’s Opening Br. at 7. 

This is in direct contrast with the lexicographical definition. In particular, the definition 

occurs between the discussion of Figs. 2A/B and 3A, and is not tied to any specific figure or 

embodiment.3

 ’097 Patent at 6:31-7:3. Moreover, the sentence that contains the definition literally 

starts with the term in dispute: “Middleware software is....” Id. at 6:39-43; see also Samsung’s 

Opening Br. at 5-7 (discussing same). 

3

 Nordic relies on Superguide Corp. v. DirecTV Enter., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) 

to argue that a construction should not “import one embodiment in the claim language.” Nordic’s 

Opening Br. at 8. Though Superguide was decided before Phillips (and thus did not have the 

benefit of the analytical framework provided by that case), Samsung agrees with that general 

principle (a principle that, ironically, Nordic violates with its construction). Samsung disagrees, 

however, that Superguide is applicable here, because when there is lexicography, the patentee’s 

definition controls. Indeed, the Superguide opinion itself distinguished its facts from a case where 

lexicography applied. See Superguide, 358 F.3d at 879 (distinguishing Kopykake Enters., Inc. v. 

Lucks Co., 264 F.3d 1377 (Fed. Cir. 2001) by stating, “[t]hat holding . . . does not have relevance 

here because the patentees in Kopykake explicitly limited the claim term . . . .”). 
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In further contrast, in the discussion of Figs. 2A/B, the specification separately discusses 

the middleware software specific to those embodiments. In particular, the specification states that 

for Fig. 2A: 

Middleware software 220 includes an application program interface (API) 221 

that help an application program running on server 110 find and communicate with 

a counterpart application running on terminal 120. To quickly locate each 

application, middleware software 220 also includes application directory 230 to 

track the role assumed by each application that is resident in each device in piconet 

100. 

’097 Patent at 5:56-63 (emphasis added). The description for Fig. 2B is identical, except with 

reference to its figure-specific annotations (e.g., “Middleware software 270”). Id. at 6:14-21. 

Samsung’s construction not only covers these descriptions, but, more to the point, is not 

limited to these descriptions. See, e.g., Samsung’s Opening Br. at 6-7 (detailing occurrences of 

term “middleware software” with no other/contrary definition). Instead, as detailed in Samsung’s 

Opening Brief, Samsung’s construction applies the definition provided by the patentee in the 

specification in a clear instance of lexicography, untied to any embodiment. See, e.g., id. at 5-7. 

b. The intrinsic evidence does not support Nordic’s construction 

Even putting aside Nordic’s failure to address lexicography, there is no support for the 

specific words used in Nordic’s construction. In particular, Nordic’s proposed construction is: 

“software providing discovery of applications and/or services.” The support in the 

specification Nordic points to, however, states: 

In one embodiment, the middleware layer includes dedicated middleware software 

providing advanced application and service discovery and execution. 

’097 Patent at 10:8-10 (emphasis added). As shown by the portions in bold above, Nordic’s 

construction does not even comport with the support it relies on. For example, without explanation 
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or justification, Nordic expands the description with the disjunctive “or” (i.e., “applications and/or

services”) and removes the word “advanced” and “and execution.” 

To be clear, it is not that Nordic must use every word in the cited passage (as they are not 

asserting lexicography) or that the cited passage should be used as a basis for the Court’s 

construction (it should not). But rather that, although Nordic cited to the example of “middleware 

software” above as support for its construction, Nordic failed to explain how the example informs 

the construction (and how it does not). 

The language in Fig. 5 that Nordic points to is no better. See Nordic’s Opening Br. at 7. 

Specifically, in Fig. 5, the portion that Nordic relies on for support states: “APPLICATION AND 

SERVICE DISCOVERY USING MIDDLEWARE.” Id. Nordic does not explain how this then 

leads to (or otherwise impacts) their proposed construction. Id. 

In fact, in a review of the intrinsic evidence, Samsung believes that the closest analog to 

Nordic’s construction appears in asserted Claim 19 itself. Specifically, the second element of 

Claim 19 recites: 

determining, whether a discovered nearby device provides an indication that it may 

include a middleware software, the middleware software configured for 

providing application and service discovery.... 

’097 Patent, Claim 19 at 12:61-64. 

The issue, however, is that the language (i.e., in Nordic’s proposed construction) is already 

in the claim—so construing “middleware software” with this same language would be redundant 

(and is evidence against Nordic’s construction). To the extent Nordic would argue that their 

construction is broader (i.e., with the inclusion of the disjunctive term “and/or”) that would lead 

to a second problem—they have expanded the term and inserted “or” without any explanation or 

justification. Ultimately, Nordic does nothing to explain how its proposed construction comports 

to (or is otherwise derived from) the intrinsic record. 
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c. The extrinsic evidence also does not support Nordic’s 

construction 

Nordic relies on two sources of extrinsic evidence: a dictionary and an expert declaration. 

As a threshold issue, because the term is defined by lexicography in the intrinsic evidence, there 

is no need to look further, much less to the extrinsic evidence. See Martek Biosciences Corp. v. 

Nutrinova, Inc., 579 F.3d 1363, 1382 (Fed. Cir. 2009) (“because the patentee explicitly defined 

[the term] ... extrinsic evidence is simply irrelevant”). But even if the Court were to consider the 

evidence, it is not helpful to Nordic. 

First, as to the dictionary, Nordic cites a technical dictionary that contains three separate 

possible definitions. In its Opening Brief, however, Nordic misrepresents them. Specifically, 

though Nordic appears to quote the dictionary, it has excised part of the first definition as well as 

the entirety of the second. In particular, Nordic quotes the dictionary as follows: 

Nordic’s Opening Br. at 8. 

 In contrast, however, the actual dictionary contains the additional definitions below 

(highlighted): 
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Nordic’s Opening Br. Ex. 4 (Dkt. No. 35-4), at NORDIC001264-5 (highlighting added). 

 The dictionary definitions present two key issues. The first is that the Nordic’s proposed 

construction is nowhere in the definition and so cannot be understood to be the “plain meaning.” 

The second is that Nordic has deleted definition No. 2 in its quote to the Court. This is significant

because the second definition refers to software that provides an API. That is, the use of APIs, as 

noted in Nordic’s dictionary definition, is consistent with the patentee’s (and Samsung’s proposed) 

lexicographical definition, i.e., “a software layer with an API that negotiates the communication 

between two applications. . . .” More importantly, it does not support Nordic’s construction as 

the dictionary definition includes APIs, which Nordic’s construction omits.

The second source of extrinsic evidence is an expert declaration provided by Dr. Gitlin. 

Dkt. No. 35-3 (“Gitlin Decl.”). As an initial matter, Samsung believes Nordic failed to comply 

with the Court’s Scheduling Order. Dkt. No. 29 (“Scheduling Order”). However, as the Court has 

recently adopted a more permissive standard for disclosure, Samsung does not seek to strike the 

declaration on that ground. See Dkt. No. 36 (applying OGP version 3.2).4

 In any event, the 

4

 The Scheduling Order required that a Party intending to rely on an expert in support of its claim 

construction position must first provide a summary of that expert’s expected testimony “including 

the opinions to be expressed and a general description of the basis and reasons therefore.” 
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declaration is not only irrelevant (i.e., as the term should be construed by lexicography), but also 

conclusory and, therefore, entirely unhelpful. 

In particular, as support for its construction, Nordic refers to paragraphs 29 and 31 of the 

Gitlin Decl., but those paragraphs read almost like a carbon copy of Nordic’s brief, providing 

nothing more than conclusions based on the same evidence and attorney arguments. These types 

of opinions should be given no weight. See Phillips, 415 F.3d at 1318 (“conclusory, unsupported 

assertions by experts as to the definition of a claim term are not useful to a court”); SkinMedica, 

Inc. v. Histogen Inc., 727 F.3d 1187, 1210 (Fed. Cir. 2013) (giving no weight to expert opinions 

that were “conclusory and incomplete”). 

In addition to asserting irrelevant opinions, Dr. Gitlin fails to even articulate the proper 

legal framework. In particular, Dr. Gitlin ignores the law (or even possibility) of lexicography. 

See Gitlin Decl. at ¶ 31 (discussing only disavowal). He then applies this incomplete 

understanding by asserting that Samsung’s construction is wrong because there is no disavowal of 

claim scope, but he does not discuss why lexicography does not apply. Id. 

Instead, Dr. Gitlin strangely asserts that Samsung’s construction is not correct because the 

claim where the term occurs (i.e., asserted Claim 19) does not recite some of the elements in 

Samsung’s construction (individually or in combination). Id. For example, he notes that “APIs” 

and “counterpart applications” do not expressly appear in the claims. Id. But he provides no basis 

of why this fact is relevant. Indeed, Nordic makes the same argument in its Opening Brief and 

also fails to explain why or provide any legal basis for its argument (e.g., that terms of a proffered 

Scheduling Order at 2. And that “[a] failure to summarize the potential expert testimony in a 

good faith, informative fashion may result in the exclusion of the proffered testimony.” Id. 

(emphasis added); compare Ex. 2 (Nordic’s Disclosure of Extrinsic Evidence) with Dkt. No. 35-3 

(Gitlin Decl.)
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construction must occur in the claims—Samsung is unaware of any such rule).5 Instead, in the 

epitome of circular reasoning, Nordic relies on the equally unsupported, identical opinions of Dr. 

Gitlin. See Nordic’s Opening Br. at 8 (citing Gitlin Decl. at ¶ 31). 

Accordingly, as the application of lexicography is clear, and Nordic provides no reason to 

find otherwise, the definition provided by the patentees in the specification for the term 

“middleware software” must apply. 

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

Term Samsung’s Construction Nordic’s Construction 

“the middleware layer” Indefinite 

or 

“the middleware software”

“software layer that includes 

middleware software” 

Unlike during the Parties’ meet-and-confers, Nordic now agrees that there is an issue with 

the antecedent basis for this claim term. Compare Ex. 1 (October 16, 2020 email from Nordic’s 

counsel to Samsung’s counsel) (Nordic stating that “this is a distinct term”) with Nordic’s Opening 

Br. at 9 (“the antecedent basis is lacking for ‘middleware layer’”). However, while acknowledging 

the issue, under the guise that it is applying the law, Nordic seeks instead to rewrite Claims 20-21 

to replace the word “the” with “a,” (such that Claims 20-21 would recite “a middleware layer”). 

There is no support for this rewrite. Instead, when there is an issue with antecedent basis, the most

direct way to resolve it is to determine if a basis is “present by implication.” See, e.g., Energizer 

5

 The law is the opposite when lexicography applies. See, e.g., Kopykake, 264 F.3d at 1383 (adding 

“conventional” to the construction of “screen printing” in view of lexicography, even though the 

claims did not recite the word “conventional”); see also, e.g., MPEP 2111.01 Plain Meaning [R10.2019] (“Where an explicit definition is provided by the applicant for a term, that definition will 

control interpretation of the term as it is used in the claim. Toro Co. v. White Consolidated 

Industries Inc., 199 F.3d 1295, 1301, 53 USPQ2d 1065, 1069 (Fed. Cir. 1999) (meaning of words 

used in a claim is not construed in a “lexicographic vacuum, but in the context of the specification 

and drawings”).”). 
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Holdings, Inc. v. Int’l Trade Comm’n, 435 F.3d 1366, 1370-71 (Fed. Cir. 2006) (finding the 

preceding claim language “anode gel” to be the antecedent basis to “said zinc anode”); Trover 

Grp., Inc. v. Dedicated Micros USA, No. 2:13-CV-1047-WCB, 2015 WL 1263358, at *9-*10 (E.D. 

Tex. Mar. 19, 2015) (finding the preceding claim language “new digitized images” to be the 

antecedent basis to “said second images”). 

a. The implicit antecedent basis is “the middleware software” 

The construction of the term “the middleware layer” is an instance of implied antecedent 

basis. In particular, Claim 19 recites the following: 

19. A method for performing device detection and service discovery in a mobile ad 

hoc communications network, comprising: 

conducting an inquiry to discover nearby devices, 

determining, whether a discovered nearby device provides an indication that it may 

include a middleware software, the middleware software configured for 

providing application and service discovery; 

when the discovered nearby device does not provide an indication that it may 

include the middleware software: 

disconnect communication session establishment with the discovered nearby 

device; 

when the discovered nearby device provides an indication that it may include the 

middleware software: 

creating a wireless short-range communication connection to discovered nearby 

device; 

confirming whether said nearby device includes the middleware software by 

requesting corresponding information from said nearby device via the wireless 

short-range communication connection; and 

when said nearby device includes the middleware software: 

executing the middleware software to perform application and service discovery 

with said nearby device. 
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’097 Patent, Claim 19 at 12:57-13:15 (emphasis added). Claims 20 and 21, which both depend 

from Claim 19, recite: 

20. The method of claim 19, wherein the middleware layer includes a service 

discovery protocol and at least one computer program, each computer program 

comprising at least one sequence of operational instructions. 

21. The method of claim 19, wherein when said at least one nearby device 

includes the middleware layer, the method further comprises: executing the 

middleware layer to launch applications and services. 

Id., Claims 20 and 21 at 13:16-24 (emphasis added)

It is important to note that while dependent Claims 20 and 21 are at issue, the term “the 

middleware layer” occurs in other dependent claims. Accordingly, if the term were rewritten to 

be “a middleware layer” as Nordic requests, then it would be so for every dependent claim where 

the term “the middleware layer” now occurs. 

However, in looking at the other dependent claims, it is clear that “the middleware layer” 

refers back to “the middleware software” as its antecedent basis. For example, Claim 35, which 

depends from Claim 19 recites, in pertinent part: 

35. The method of claim 19, wherein the executing of the middleware layer to 

perform application and service discovery further comprises.... 

Id., Claim 35 at 14:9-11. In going back to Claim 19, this language in Claim 35 is a verbatim mirror 

of “the middleware software” in the last element of Claim 19: 

executing the middleware software to perform application and service 

discovery with said nearby device. 

Id., Claim 19 at 13:14-15. Moreover, the language of Claim 35 correctly references the antecedent 

“executing” step in Claim 19 by reciting “the executing.” In addition, language similar to this in 

dependent Claim 35 occurs in each set of dependent claims and is a mirror of the executing element 

(and “the middleware software”) in the independent claim. For example: 
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• Claim 17 (dependent from apparatus Claim 1): “wherein to execute the middleware 

layer to perform application and service discovery, the processor further configured 

to....” 

• Claim 43 (dependent from Beauregard Claim 37): “wherein the program code for 

executing the middleware layer to perform application and service discovery 

further comprises....” 

• Claim 51 (dependent from apparatus Claim 45): “wherein the means for executing 

the middleware layer to perform application and service discovery further 

comprises....” 

This evidence alone should be sufficient to confirm that the implied antecedent basis for “the 

middleware layer” is “the middleware software” and so the terms should be construed the same. 

 But there is more. In the prosecution history of the ’097 Patent, all the claims in the original 

application recited a “middleware layer.”6

 Ex. 3 (’097 Patent Prosecution History, 09/16/2003 

Application) at 23-36. For example, as originally filed, method Claim 19 provided the express 

antecedent basis for “the middleware layer” in original Claims 20 and 21: 

6

See, e.g., Energizer Holdings, 435 F.3d at 1370-71 (reviewing prosecution history to inform 

antecedent basis issue). 
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Id. at 27 (emphasis added). After a first rejection, the applicants amended the claims to, inter alia, 

equate the middleware layer to middleware software (the amendment in claim 19 shown below): 
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Ex. 4 (3/12/2007 amendment (emphasis in original, annotation added)) at 6. After further 

rejections, the applicant again amended the claims, still reciting “middleware layer” in the 

independent claims, but this time claiming, inter alia, “middleware layer comprising middleware 

software....” 

Ex. 5 (2/20/2008 amendment (emphasis in original, annotation added)) at 5-6. Then, after further 

rejections and discussions with the examiner, the applicants filed an additional amendment (along 

with a request for continued examination), where they removed reference to the “middleware 

layer” in the independent claims, but did not change any of the dependent claims (i.e., the 

dependent claims still recited middleware layer instead of middleware software): 
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Ex. 6 (10/22/2008 amendment (emphasis in original) (annotations added)) at 5-6. It is not clear 

from the prosecution history why the change from middleware layer to middleware software was 

made. See id. at 16 (merely distinguishing the prior art by repeating the elements of the claims). 

But they did argue that “[a]pplicants’ ad hoc device detection and service discovery protocol” was 

based on “using middleware software.” Id. 

Regardless 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. Accordingly, these facts further support the conclusion that the “middleware software” in 

Added 

“middleware 

software”

Deleted 

“middleware 

layer”
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the independent claims is the implicit antecedent basis for “the middleware layer” in the dependent 

claims.7 

b. Nordic provides no support for its construction 

As a threshold issue, Nordic has never established why “the” should be viewed as “a.” 

Instead, Nordic just summarily concludes that the term should be construed as a “distinct term.” 

For the reasons above, this is not the legally correct approach for addressing an antecedent basis 

issue. 

In addition, at the risk of giving Nordic’s argument any credence, even assuming arguendo

that the term should be construed under a plain meaning framework despite lacking express 

antecedent basis, Nordic’s construction still has no support. In particular, Nordic points to the 

same portion of the specification (’097 Patent at 10:8-10) in support of its construction 

“middleware layer” as it did for “middleware software.” Nordic’s Opening Br. at 9-10. As 

discussed, the cited portion of the specification specifically limits itself to an embodiment: 

In one embodiment, the middleware layer includes dedicated middleware software 

providing advanced application and service discovery and execution.

’097 Patent at 10:8-10 (emphasis added). In addition, Nordic repeats the same erroneous neitherhere-nor-there approach as with “middleware software,” where its construction is not actually 

recited in the excerpted passages, and then does not explain why it adopts some portions but not 

others. 

7

 Nordic argues that Samsung must use expert testimony to prove invalidity (Nordic’s Opening Br. 

at 10), but expert testimony is not required to address an antecedent basis issue. See, e.g., Gree, 

Inc. v. Supercell Oy, No. 2:19-CV-00070-JRG-RSP, 2020 WL 2332144, at *34 (E.D. Tex. May 

11, 2020) (expert testimony not required regarding antecedent basis); Summit 6 LLC v. HTC Corp., 

No. 7:14- CV-00014-O, 2015 WL 11117868, at *19 (N.D. Tex. Mar. 21, 2015) (citing Smartflash 

LLC v. Apple Inc., 77 F. Supp. 3d 535, 560 (E.D. Tex. 2014)) (same).
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Nordic also relies on the opinions of Dr. Gitlin, which in turn, again, simply parrots 

Nordic’s brief, without providing analysis or addressing any of the issues discussed above. See 

Gitlin Decl. at ¶¶ 34-36. 

Accordingly, the Court should find that the antecedent basis of the term “the middleware 

layer” is “the middleware software” and construe the terms identically. 

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” 

The parties both argue that their construction is the plain and ordinary meaning of “call 

initiation signals” in light of the claim language and specification, but only Samsung’s construction 

is supported by all of the language in the claims and all of the embodiments in the specification. 

Nordic’s proposed construction creates a dispute of claim scope that requires resolution. In 

particular, it not only fails to give meaning to all of the claim’s terms, but its construction is 

contrary to the dependent claims, and is so narrow that it covers only two embodiments in the 

specification. 

Without a construction, or at least an express repudiation of what Nordic contends the 

construction should be, the scope of the term would be left to the jury to determine. To be sure, 

under any construction, the experts and parties will eventually argue the facts of whether a product 

or disclosure meets the term, but the present dispute goes to the fundamental scope of the claim. 

Without a construction, Nordic could, for example, proffer to the jury that only “part of a telephone 

number” would meet this term—while Samsung would proffer that it could, e.g., be any signal. 

Then, the jury would be left to interpret the claim construction, e.g., each juror would need to 
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decide whether the “plain and ordinary” meaning is limited to phone numbers. This is exactly 

what the cases state should be within the sole providence of the Court. See Phillips, 415 F.3d at 

1330 n.1 (“the judge, as opposed to the jury, should determine the meaning of a patent claim”); 

see also Eon Corp. IP Holdings v. Silver Spring Networks, 815 F.3d 1314, 1318 (Fed. Cir. 2016) 

(“This duty [of resolving the dispute regarding the scope of a claim term] resides with the court 

because, of course, ‘the ultimate question of construction [is] a legal question.’”) (citation 

omitted); 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”). 

As to the substance of the claim construction dispute, beginning with the words of the term 

itself, Samsung’s construction addresses every word in “call initiation signals,” while Nordic’s 

excludes two-thirds of the term. In particular, “any signal” in Samsung’s construction corresponds 

to “signals”; “indicating that a calling party is going to place” corresponds to “initiation”; and 

“telephone call” corresponds to “call.” Nordic’s construction, by contrast, only addresses the word 

“call” in “call initiation signals.” Nothing in “part of a telephone number” suggests “initiation” or

“signal.”8

 Thus, Nordic’s construction is not correct. See, e.g., Dell Inc. v. Acceleron, LLC, 818 

F.3d 1293, 1300 (Fed. Cir. 2016) (“meaning should be given to all of a claim’s terms”); Bicon, 

Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (“claims are interpreted with an eye 

toward giving effect to all terms in the claim”). 

Nordic appears to state that its construction comes from the claim itself. See Nordic’s 

Opening Br. at 5. For legal support, it quotes a sentence from Lodsys, LLC v. Brother Int’l Corp., 

8

 To be clear, Samsung is not married to the exact language used in its construction, but rather 

merely endeavored to formulate a construction that reflected the correct plain meaning according 

to the canons of construction and that addressed the dispute between the parties. 
19 

US 168921692v6

No. 2:11-CV-00090-JRG, 2013 WL 2949959, at *4 (E.D. Tex. June 14, 2013). While Samsung 

does not take issue with the quoted proposition (e.g., that the claims provide substantial guidance 

for the meaning of claim terms), the remainder of that passage (not quoted by Nordic) makes clear 

that all of the claims must be considered: 

Other claims of the patent in question, both asserted and unasserted, can 

also be valuable sources of enlightenment as to the meaning of a claim term. 

Because claim terms are normally used consistently throughout the patent, 

the usage of a term in one claim can often illuminate the meaning of the 

same term in other claims. 

Id. (citations omitted) (emphasis added). 

Nordic, while in the same breath stating that the claims must be considered, cherry-picks 

only one and ignores the others. Even as to the claim Nordic selects to focus on, Claim 16, Nordic 

does not articulate how the claim supports Nordic’s construction or, alternatively, how it 

demonstrates that Samsung’s construction is not correct. See Nordic’s Opening Br. at 5. Instead, 

all Nordic does is paraphrase/repeat the steps in the claim. Id. 

Samsung, on the other hand, as detailed in its Opening Brief (at pages 10 and 11), 

demonstrated how Nordic’s construction is directly contrary to Claim 18. Nordic’s Opening Brief 

does not address this issue. 

Samsung’s construction is also consistent with every embodiment in the specification, 

while Nordic’s construction tries to limit the term to just two embodiments. In particular, Nordic 

states that the ’095 Patent “defines examples of call initiation signals” and points to the examples 

at ’095 Patent, lines 5:2-9. Nordic ignores, without explanation, the other examples that do not fit 

into its construction, such as signals from a computer keyboard, e.g., at 4:48-51 (“the call initiation 

signals... may be signals received from the keyboard of a computer”) or the other examples cited 

by Samsung, such as a signal that corresponds to an activation sequence, which is not limited to a 
20 

US 168921692v6

part of a phone number but can be code characters such as # and *. Samsung’s Opening Br. at 

9-10. 

Nordic makes no attempt to explain why “call initiation signals” should be limited to only 

two embodiments, nor does it attempt to address any of the contrary embodiments. Instead, it just 

points to the claim language, its cherry-picked examples, and Dr. Gitlin’s declaration (discussed 

below), then argues, ipso facto, that its construction is supported and correct. 

As to Dr. Gitlin’s declaration, as with each of the other terms above, his conclusory 

opinions should be given no weight. See Phillips, 415 F.3d at 1318 (“conclusory, unsupported 

assertions by experts as to the definition of a claim term are not useful to a court”). Beyond being 

only conclusory, they are also entirely at odds with the claims and the specification. Id. (noting 

that “a court should discount any expert testimony that is clearly at odds with the claim 

construction mandated by the claims themselves, the written description, and the prosecution 

history, in other words, with the written record of the patent”) (internal citation omitted). For 

example, Dr. Gitlin does not consider each occurrence of the claim term in the specification or the 

claims. Accordingly, his opinions should be given no weight. 

III. CONCLUSION 

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

constructions. 

Dated: November 18, 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 
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US 168921692v6

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.
US 168921692v6

CERTIFICATE OF SERVICE 

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

service are being served on November 18, 2020 with a copy of this document via electronic mail. 

/s/ Jin-Suk Park 

Jin-Suk Park