IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

WSOU INVESTMENTS, LLC d/b/a 

BRAZOS LICENSING AND 

DEVELOPMENT, 

Plaintiff, 

v. 

MICROSOFT CORPORATION, 

Defendant. 

Civil Action No. 6:20-cv-454 

Civil Action No. 6:20-cv-461 

PUBLIC VERSION

MICROSOFT CORPORATION’S REPLY IN SUPPORT OF THE 

MOTION FOR SUMMARY JUDGMENT OF NO INFRINGEMENT OF 

U.S. PATENT NOS. 7,106,702 AND 7,366,160 

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TABLE OF CONTENTS 

INTRODUCTION .............................................................................................................. 1

MICROSOFT DOES NOT INFRINGE THE ’702 PATENT ............................................ 1

A. WSOU’s Cited Source Code Does Not Practice the “Informing” or “Informed”

Limitations. ............................................................................................................. 2

B. WSOU Arguments Regarding “Client-Side Failover Processes” Contradict Its

Own Infringement Theory. ..................................................................................... 5

C. There Is No Evidence That The Claimed “Plurality of Nodes” Or “Network” Are

Informed. ................................................................................................................. 6

MICROSOFT DOES NOT INFRINGE THE ’160 PATENT ............................................ 7

CONCLUSION ................................................................................................................. 10

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INTRODUCTION 

WSOU Investments, LLC (“WSOU”) cannot meet its burden of proof on the claim that 

Microsoft Corporation (“Microsoft”) allegedly infringes the asserted claims in U.S. Patent Nos. 

7,106,702 and 7,366,160. In both cases, Dr. Stan McClellan, WSOU’s technical expert, fails to 

address each and every limitation of the asserted claims. 

For the ’702 Patent, Dr. McClellan failed to offer evidence showing that Microsoft 

practices the “informing”/“informed” limitations found in the asserted claims. WSOU attempts 

to muddy the waters in its response by citing to Dr. McClellan’s descriptions of certain source 

code files found in an appendix to his report. But those descriptions are divorced from any 

analysis of the claim limitations themselves, and Dr. McClellan does not opine that any of this 

source code actually performs the “informing”/“informed” limitations. In any event, WSOU’s 

new argument that certain client devices are part of the claimed “plurality of nodes” that are 

“informed”—an argument directly in conflict with the testimony of Dr. McClellan—is 

unavailing. WSOU’s infringement theory requires “informing” all “nodes,” including the 

accused servers, and Dr. McClellan never opines that these servers are “informed.” 

For the ’160 Patent, Dr. McClellan’s analysis simply rests on the wrong source code. 

His analysis of the “determining a trend” limitation found in all asserted claims rests on source 

code that WSOU does not dispute was never deployed or used in the accused software. WSOU 

cannot meet its burden of proof on the issue of infringement. This Court should therefore enter 

summary judgment of no infringement as to the asserted claims of the ’702 and ’160 Patents. 

MICROSOFT DOES NOT INFRINGE THE ’702 PATENT 

WSOU contends that servers running Microsoft’s Network Policy Server (NPS) 

constitute the accused “nodes” in each asserted claim. Under WSOU’s theory, when a new node 

is “activated,” the asserted claims require either “informing” all of the “nodes” (Claim 1) or that 

Case 6:20-cv-00461-ADA Document 164 Filed 05/10/22 Page 5 of 16
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all1 of the nodes be “informed” (Claim 11). But WSOU does not dispute that these accused NPS 

servers, which implement a prior art AAA2

 standard known as RADIUS, do not “inform” other 

RADIUS servers of anything, and Dr. McClellan has never advanced an the opinion that these 

NPS servers are “informed.” As Microsoft explained in its opening brief, WSOU’s argument 

that “informing” RADIUS clients (instead of the accused RADIUS servers) satisfies the 

“informing” and “informed” limitations does not fix Dr. McClellan’s theory because, as noted 

above, the asserted claims require “informing” all the nodes. (Dkt. No. 133 (454 Case, “MS 

Br.”), 4-5.) There is no genuine dispute of material fact that the “informing” and “informed” 

limitations are not met. Summary judgment is therefore appropriate here. 

A. WSOU’s Cited Source Code Does Not Practice the “Informing” or 

“Informed” Limitations. 

Despite devoting more than a page of its opposition to listing source code files, functions, 

parameters, and classes, WSOU never identifies a single instance where Dr. McClellan expressly 

ties his description of the source code to the “informing” or “informed” limitations of the 

asserted claims. In fact, Dr. McClellan never opined that the various source code files even 

relate to the “informing”/“informed” limitations. Rather, when addressing these limitations, he 

opined that various code files “perform functions related to activating the AAA functions of the 

node selected in step (d)” or “perform functions related to activating the AAA functions of a 

1

 To the extent WSOU is now attempting to argue that only some subset of the plurality of nodes 

needs to be informed, such argument is inconsistent with WSOU’s arguments to the PTAB in 

related IPR proceedings. There, WSOU argued to the PTAB that “the claim language expressly 

requires [that] . . . each one of ‘the plurality of nodes’” is informed, and that it is insufficient that 

“the ‘network’ in general is informed (as opposed to each one of the ‘plurality of nodes’ in 

particular)). IPR Response, 52 (emphasis added). 

2

 AAA is an acronym for Authentication, Authorization, and Accounting. AAA functionality 

“authentication verifies a user’s identity; authorization determines if a user can access network 

resources; and accounting collects user data.” (MS Br., 2.) 

Case 6:20-cv-00461-ADA Document 164 Filed 05/10/22 Page 6 of 16
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subset of nodes.” (McClellan 702 Inf. Rept., ¶¶117, 151.) The “activating” steps are entirely 

different limitations of the claims, separate from the “informing” and “informed” limitations. 

(See, e.g., ’702 Patent, Claim 1; McClellan 702 Inf. Rept., ¶¶112-117 (addressing steps (e) and 

(f) separately).) 

WSOU sidesteps the fact that Dr. McClellan connected this source code to a different 

claim limitation by suggesting that his descriptions of the source code files 

 demonstrate that he opined that the accused NPS software and system 

“practice the ‘informing’/‘informed’ limitations.” (Opp., 2-4.) But, as the excerpts in the 

opposition show, the word “informing” or “informed” does not appear in Dr. McClellan’s 

analysis of these files, and he does not explain how these files practice (if at all) the “informing” 

or “informed” limitations. 

For example, as explained in Microsoft’s opening brief, Dr. McClellan never analyzed 

the clause that contains the “informed” limitation of Claim 11. (MS Br., 4.) WSOU now 

attempts to remedy this omission by expressly calling out the source code file 

meeting the “informed” limitation. (Opp., 4.) But as the excerpts in the opposition again show, 

Dr. McClellan never identified anything in this source code file as practicing the “informed” 

limitation. Indeed, the description of the in Dr. McClellan’s report suggests 

(but does not state) that it relates to an entirely different limitation—“monitoring,” as he opined 

that it “[d]efines functions which create, manage, and monitor availability for remote servers 

and groups of servers which provide AAA services.” (McClellan 702 Inf. Rept., ¶151 (emphasis 

added).) It is perplexing that WSOU now contends the file relates to the “informed” limitation. 

(’702 Patent, Claim 11.) Also perplexing is the fact that in connection with the analogous 

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“informing” limitation of Claim 1, Dr. McClellan does not even list the 

(McClellan 702 Inf. Rept., ¶117.) 

Other source code files specifically called out in WSOU’s opposition, 

 do not have any identified relationship to 

the “informing” or “informed” limitations either. For example, Dr. McClellan’s description of 

the are identical for every relevant limitation of 

Claim 1,3 and his description of only slightly differs 

between the relevant limitations of Claim 1.4 In any event, in these descriptions, Dr. McClellan 

never explains if or how these files practice the “informing” or “informed” limitations. 

Nor does Dr. McClellan’s description of these source files in the appendix to his report 

cure these deficiencies. Dr. McClellan identifies the same source code file for multiple claim 

limitations, yet the appendix provides the same description for each file, unconnected to any 

limitations. (See McClellan 702 Inf. Rept., App’x A.6, A.7, A.8, A.9, A.10, A.11, A.12).) 

WSOU bears the burden of proof on infringement; it cannot create a genuine dispute of material 

fact by forcing Microsoft and the Court to guess how claim limitations might (or might not) be 

met based on Dr. McClellan’s undifferentiated, generalized comments about source code that 

may (or may not) apply equally to multiple distinct limitations in multiple claims. 

3

 McClellan 702 Inf. Rept., ¶¶97, 102, 106, 111, 114, 117 ( ); ¶¶106, 

111, 114, 117 ( ) 

4

 McClellan 702 Inf. Rept., ¶¶102, 106, 111, 117 ( ); ¶¶97, 102, 106, 111, 114, 117 

( ) 

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B. WSOU Arguments Regarding “Client-Side Failover Processes” Contradict 

Its Own Infringement Theory. 

After Microsoft pointed out in its opening brief that Dr. McClellan never identified how 

RADIUS servers are “informed.” (MS Br., 4-5.) In its opposition, WSOU advances the new 

argument that RADIUS clients are “AAA function capable” nodes that are “informed,” 

notwithstanding Dr. McClellan’s testimony to the contrary. (McClellan Dep., 64:5-7 (“Q: So 

that means [a network access server acting as a RADIUS client] is AAA function capable? A: I 

wouldn’t say it that way.”).) WSOU’s attempt to distinguish the RADIUS client from the 

RADIUS protocol’s “client-side failover processes” is a distinction without a difference, as 

WSOU’s infringement theory is based on the very “client-side failover processes” that Dr. 

McClellan argues is “not part of the ‘AAA functionality of the network” as disclosed in the ’702 

patent.” (Opp., 5 (quoting McClellan 702 Valid. Rept., ¶89).) There is no dispute that the 

accused NPS software and system practices the RADIUS protocol. And Dr. McClellan’s theory 

for how the “informing” limitation is met specifically describes RADIUS’s client-side failover 

process. (See, e.g., McClellan 702 Inf. Rept., ¶116 (“Each RADIUS client may configure on 

both NPS. If the primary NPS becomes available, RADIUS clients are informed so that they 

may send Access-Request messages to the alternate NPS.”).) In other words, Dr. McClellan 

opines that NPS infringes when a RADIUS server becomes unavailable, and RADIUS clients fail 

over to a backup RADIUS server. But then, Dr. McClellan turns around and asserts, for 

purposes of invalidity, that the same accused client-side failover process is “not part of the ‘AAA 

functionality’ of the network as disclosed in the ’702 patent.” (McClellan Valid. Rept., ¶89.) 

Self-contradiction does not create a genuine issue of material fact. See, e.g., Hoover v. Bayer 

Healthcare Pharm. Inc., No. 3:14-cv-05090, 2017 WL 2313178, at *2 (W.D. Mo. Mar. 24, 

Case 6:20-cv-00461-ADA Document 164 Filed 05/10/22 Page 9 of 16
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2017) (“Plaintiff is unable to create a genuine issue of material fact through the inconsistent 

statements of Plaintiff's own expert.”). 

C. There Is No Evidence That The Claimed “Plurality of Nodes” Or “Network” 

Are Informed. 

Assuming arguendo that RADIUS clients can be the AAA function capable “nodes” in 

the asserted claims, informing RADIUS clients alone still would not satisfy the requirement that 

the “plurality of nodes” recited in Claim 1 or the “network” recited in Claim 11 be “informed.” 

As Microsoft explained in its opening brief, under WSOU’s infringement theory, the claimed 

“plurality of nodes” and “network” necessarily include at least those RADIUS servers that are 

“activated,” even if the “plurality of nodes” includes clients, as WSOU suggests. (MS Br., 4-6.) 

Specifically, Claim 1 requires “selecting two of the plurality of nodes to be active nodes,” 

“activating the AAA functions of the active nodes,” “monitoring the active nodes to determine if 

one of the active nodes gets disconnected from the network,” and “informing the plurality of 

nodes” of the activation of the AAA functions of another node only after such disconnection. 

(’702 patent, Claim 1.) Similarly, Claim 11 requires that the active nodes “monitor[] one another 

to detect if an active node becomes disconnected from the network, wherein when one is 

determined to be disconnected from the network another of the plurality of nodes is selected to 

be an active node and the network informed thereof.” (Id., Claim 11.) Throughout Dr. 

McClellan’s report, he identifies only RADIUS servers (NPS servers) as the nodes that have 

their AAA functions activated and are monitored for disconnection from the network. (See

McClellan 702 Inf. Rept., ¶¶100-101 (opining the “activating” limitation is met because “NPS 

servers can be used as a RADIUS server[,]” and “whenever NPS servers are setup [sic] as 

RADIUS servers, they become AAA functional.”); id., ¶105 (opining the “monitoring” limitation 

is met because NPS “has failover settings that provide a way to determine whether the remote 

Case 6:20-cv-00461-ADA Document 164 Filed 05/10/22 Page 10 of 16
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RADIUS server is unavailable”); id., ¶¶109-110, 149 (opining the “disconnect[ion]” limitation is 

met when “NPS determines that a RADIUS server is unavailable”).) Dr. McClellan’s report 

never mentions the monitoring, disconnection, or activation limitation in connection with a 

RADIUS client, nor has WSOU ever advanced such an infringement theory. Therefore, even if 

RADIUS clients could comprise part of the claimed “plurality of nodes” and “network,” the 

“informing” and “informed” limitations cannot be satisfied under WSOU’s infringement theory 

unless the RADIUS servers are also informed. Here, there simply is no evidence that shows that 

the RADIUS servers are “informed.” (DeKok Rebuttal Rept., ¶¶175, 274-280, 339.) 

MICROSOFT DOES NOT INFRINGE THE ’160 PATENT 

WSOU does not dispute that its entire infringement case rests on source code that is not 

used in the accused Azure Monitor software. Summary judgment of non-infringement is 

therefore appropriate. The asserted claims of the ’160 Patent require a user to “determin[e] a 

trend of the [service] indicator.” (’160 Patent, Claim 1.) WSOU contends that this step, which is 

present in all asserted claims, is satisfied when a user invokes a source code 

 which resides in a (MS Br., 7.) 

Not only is the accused source code not used in Azure 

Monitor, the entire source code is not used in Azure 

Monitor. (MS Br., 7.) As Dr. Mark Coates, Microsoft’s technical expert, explains in his 

declaration, the three source code files5

 that WSOU’s technical expert, Dr. Stan McClellan, 

5

 Because the three source code files that Dr. McClellan identified in his report as related to 

“determining a trend” were written in the , they are collectively 

referred to as the “ ” in Microsoft’s opening brief and in Dr. Coates’s declaration. 

Dr. McClellan’s report identifies six source code files in the section addressing the “determining 

a trend” limitation. Dr. McClellan only opines that the relate to “determining 

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analyzed in his report as related to the “determining a trend” limitation are not “deployed, 

compiled, or otherwise used in Azure Monitor.” (Coates Decl., ¶9, see also id., ¶¶5-6 (same)) 

Dr. Coates’s declaration and report further explain that these source code files are not even 

connected to any of the other source code files that Dr. McClellan analyzed with respect to the 

other limitations of the asserted claims. (Coates Decl., ¶7 (stating Dr. McClellan does not 

identify how the files are connected); ¶8 (

 that are not called by any files that I could identify outside of the isolated [] folder in 

which they are located”); see also Coates Rebuttal Rept., App’x C [A.21], [A.22], [A.26]).) 

WSOU does not dispute any of these facts in its opposition. Instead, it contends that 

there are un-named source code functions in the un-used and 

“[o]ther modules” that practice “determining a trend.” (Opp., 7) But WSOU did not dispute that 

the is not used in the accused Azure Monitor software, or that 

the two other files analyzed in Dr. McClellan’s report as related to the “determining a trend” 

limitation also are not used in the accused Azure Monitor software. Because the source code 

files are not used, it is irrelevant what they may or may not do. The bottom line is that source 

code that is not used in the accused Azure Monitor software cannot support a claim of 

infringement directed to functionality in Azure Monitor. 

WSOU’s reliance on Dr. Coates’s opinion that the un-used files were generally “rewritten” (Opp., 8) is similarly irrelevant. To start, WSOU should have analyzed the deployed 

source code, not the un-used source code. In any event, Dr. Coates never opined that the accused 

source code function was preserved in the deployed source code, and, in fact, opined that the 

a trend.” The remaining three files are not identified as “determining a trend.” (McClellan 160 

Inf. Rept., ¶119.) 

Case 6:20-cv-00461-ADA Document 164 Filed 05/10/22 Page 12 of 16
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accused was already disabled even in the 

6

 (See Coates Rebuttal Rept., ¶¶163-64 (

).) 

Finally, WSOU’s attempt to smuggle a doctrine of equivalents theory into this case fails 

under settled caselaw. In Texas Instruments Inc. v. Cypress Semiconductor Corp., the Federal 

Circuit explained that to establish infringement under the doctrine of equivalents: 

[A] patentee must still provide particularized testimony and linking argument as to the 

“insubstantiality of the differences” between the claimed invention and the accused 

device or process, or with respect to the function, way, result test when such evidence is 

presented . . . . Generalized testimony as to the overall similarity between the claims and 

the accused infringer’s product or process will not suffice. 

90 F.3d 1558, 1567 (Fed. Cir. 1996). “These evidentiary requirements assure that the fact finder 

does not, under the guise of applying the doctrine of equivalents, erase a plethora of meaningful 

structural and functional limitations of the claim on which the public is entitled to rely in 

avoiding infringement.” Texas Instruments, 90 F.3d at 1567 (quotations omitted). 

Here, Dr. McClellan’s analysis contains no “particularized testimony” or “linking 

argument.” Instead, it contains several quotations from the testimony of a Microsoft witness, 

Ms. Rachel Lemberg, on generally creating “ models” and then summarily concludes 

that “[t]his process is equivalent to determining a trend of a parameter or indicator as a function 

of parameter or indicator values.” (Opp., 7-8.) Dr. McClellan never provides the “why” or 

6

 The note in the background of WSOU’s opposition about Azure Monitor’s ability to display 

data in a graph from which a user (not the software) may (or may not) visually discern potential 

trends in the data (Opp., 6) is irrelevant. All parties agree this is non-infringing functionality. 

(See Dkt. No. 157, at 3 (454 Case) (In the ’160 Patent “[t]he network parameters are not simply 

compared with thresholds or presented in graphical form to aid human decision-making 

processes, as had been previously done in the prior art.”); McClellan Dep., 166:24-167:14 

(“displaying historical data in a line graph” is “not determining a trend”).). 

Case 6:20-cv-00461-ADA Document 164 Filed 05/10/22 Page 13 of 16
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“how.” This is the type of testimony that the Texas Instruments court cautioned against. In fact, 

it is well known that there are numerous models, including those that are not 

“equivalent” to “determining a trend.” One example, as discussed in Dr. Coates’s report, is 

 (Coates Rebuttal 

Rept., ¶166 (emphasis added).) 

Summary judgment of non-infringement is appropriate. At this stage in the case, source 

code that is not used in the accused Azure Monitor software and a statement from Dr. Coates’s 

report about why that source code was never used in the accused software is not sufficient 

evidence for WSOU to meet its burden of proof on infringement. 

CONCLUSION 

Because WSOU has no evidence that Microsoft practices the “informing”/“informed” 

limitations in each asserted claim of the ’702 Patent and the “determining a trend” limitation in 

each asserted claim of the ’160 Patent, it cannot meet its burden of proof on infringement of 

those claims. This Court should enter judgment of non-infringement for Microsoft. 

DATED: May 3, 2022 Respectfully submitted, 

 

/s/ Richard A. Cederoth (by permission) 

Melissa R. Smith, Bar No. 24001351 

melissa@gillamsmithlaw.com 

James “Travis” Underwood, Bar No. 

24102587 

travis@gillamsmithlaw.com

GILLAM & SMITH, LLP 

303 South Washington Avenue 

Marshall, Texas 75670 

Tel: (903) 934-8450 

Fax: (903) 934-9257 

Michael J. Bettinger

mbettinger@sidley.com 

Case 6:20-cv-00461-ADA Document 164 Filed 05/10/22 Page 14 of 16
11 

Irene Yang 

irene.yang@sidley.com 

Brooke S. Boll 

brooke.boll@sidley.com 

SIDLEY AUSTIN LLP 

555 California Street, Suite 2000 

San Francisco, CA 94104 

Tel: (415) 772-1200 

Fax: (415) 772-7400 

Richard A. Cederoth 

rcederoth@sidley.com 

John W. McBride 

jwmcbride@sidley.com 

Richard M. Chen 

rchen@sidley.com 

Kevin Robert Oliver

kevin.oliver@sidley.com 

SIDLEY AUSTIN LLP 

1 South Dearborn St. 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

ATTORNEYS FOR MICROSOFT 

CORPORATION 

 

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CERTIFICATE OF SERVICE 

I, Richard M. Chen, certify that on May 3, 2022 this document and related exhibits 

(unless previously-filed or non-confidential) were filed under seal with the Clerk of Court via the 

Court’s CM/ECF system. This documents and the applicable exhibits were subsequently served 

on all counsel of record by electronic mail. 

DATED: May 3, 2022 /s/ Richard M. Chen 

Richard M. Chen 

rchen@sidley.com 

SIDLEY AUSTIN LLP 

1 South Dearborn St. 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

ATTORNEY FOR MICROSOFT 

CORPORATION 

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