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. 

CASE NO. 6:20-CV-00454-ADA 

CASE NO. 6:20-CV-00461-ADA 

CASE NO. 6:20-CV-00465-ADA 

JURY TRIAL DEMANDED

BRAZOS’ OPPOSITION TO DEFENDANT MICROSOFT CORPORATION’S MOTION 

FOR SUMMARY JUDGMENT OF PATENT INELIGIBILITY OF THE ASSERTED 

CLAIMS OF U.S. PATENT NOS. 7,366,160, 8,274,902, AND 7,106,702 

PUBLIC VERSION

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 1 of 31
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TABLE OF CONTENTS 

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

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

A. The ’160 Patent Asserted Claims Are Patent Eligible. ............................................1 

1. Alice Step One: The asserted claims are not directed to an 

abstract idea. ................................................................................................1 

2. Alice Step Two: The asserted claims, singly or as an ordered 

combination, solve a technology-based problem, and thus 

disclose an inventive concept. ......................................................................9 

B. The ’902 Patent Asserted Claims Are Patent Eligible. ..........................................12 

1. Alice Step One: The asserted claims are not directed to an 

abstract idea. ..............................................................................................12 

2. Alice Step Two: The asserted claims, singly or as an ordered 

combination, solve a technology-based problem, and thus 

disclose an inventive concept. ....................................................................16 

C. The ’702 Patent Asserted Claims Are Patent Eligible. ..........................................18 

1. Alice Step One: The asserted claims are not directed to an 

abstract idea. ..............................................................................................18 

2. Alice Step Two: The asserted claims, singly or as an ordered 

combination, solve a technology-based problem, and thus 

disclose an inventive concept. ....................................................................21 

III. Conclusion .........................................................................................................................23 

 

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Aatrix Software, Inc. v. Green Shades Software, Inc., 

882 F.3d 1121 (Fed. Cir. 2018)..................................................................................................1 

Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 

841 F.3d 1288 (Fed. Cir. 2016)........................................................................................ passim

BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 

827 F.3d 1341 (Fed. Cir. 2016)....................................................................................11, 12, 17 

Berkheimer v. HP Inc., 

881 F.3d 1360 (Fed. Cir. 2018)..........................................................................................10, 17 

Broadcom Corp. v. Netflix Inc., 

2021 WL 4170784 (N.D. Cal. Sept. 14, 2021) ..........................................................................8 

Cellspin Soft, Inc. v. Fitbit, Inc., 

927 F.3d 1306 (Fed. Cir. 2019)......................................................................................9, 10, 21 

Cogent Med., Inc. v. Physicians Interactive Holdings, Inc., 

70 F. Supp. 3d 1058 (N.D. Cal. 2014) .......................................................................................8 

Corp. v. CLS Bank Int’l, 

573 U.S. 208 (2014) .................................................................................................5, 10, 16, 22 

Diamond v. Diehr, 

450 U.S. 175 (1981) .............................................................................................................7, 20 

eCeipt LLC v. Homegoods, Inc., 

No. W-19-CV-00032-ADA, 2019 WL 10302271 (W.D. Tex. May 20, 2019) .....10, 11, 16, 17 

Enfish, LLC v. Microsoft Corp., 

822 F.3d 1327 (Fed. Cir. 2016)........................................................................................ passim

ESW Holdings, Inc. v. Roku, Inc., 

No. 6:19-CV-00044-ADA, 2019 WL 10303653 (W.D. Tex. May 13, 2019) .................3, 5, 15 

Finjan, Inc. v. Blue Coat Sys., Inc.

879 F.3d 1299 (Fed. Cir. 2018)............................................................................................9, 16

In re TLI Communications LLC Patent Litig., 

823 F.3d 607 (Fed. Cir. 2016)....................................................................................................4 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 3 of 31
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Mayo Collaborative Servs. v. Prometheus Labs., Inc., 

566 U.S. 66 (2012) ...............................................................................................................5, 10 

McRO, Inc. v. Bandai Namco Games Am. Inc., 

837 F.3d 1299 (Fed. Cir. 2016)........................................................................................ passim

O'Reilly v. Morse, 

56 U.S. 62 (1854) .......................................................................................................................4 

Packet Intel. LLC v. NetScout Sys., Inc., 

965 F.3d 1299 (Fed. Cir. 2020)........................................................................................ passim

SpeedTrack Inc. v. Amazon.com, Inc., 

2017 WL 11046199 (N.D. Cal. Jan. 23, 2017) ....................................................................2, 13 

SRI Int’l, Inc. v. Cisco Sys., Inc., 

930 F.3d 1295 (Fed. Cir. 2019)........................................................................................ passim

Visionix Inc. v. United States, 

850 F.3d 1343 (Fed. Cir. 2017)..................................................................................................5 

Statutes 

35 U.S.C. § 101 ...................................................................................................................... passim

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TABLE OF EXHIBITS 

Exhibit No. Description Abbreviation 

1 Excerpts of the Expert Report of Dr. 

Stan McClellan - Infringement of 

U.S. Patent No. 7,366,160 By 

Microsoft Corporation

McClellan 160 Infr. Rep. 

2 Excerpts of the Expert Report of 

Mark Coates Ph.D. Regarding the 

Invalidity of U.S. Patent No. 

7,366,160 

Coates 160 Invalid. Rep. 

3 Excerpts of the Expert Report of Dr. 

Stan McClellan Regarding Validity 

of U.S. Patent 7,366,160 

McClellan 160 Valid. Rep. 

4 Excerpts of the Expert Report of Dr. 

Stan McClellan - Infringement of 

U.S. Patent No. 8,274,902 By 

Microsoft Corporation

McClellan 902 Infr. Rep. 

5 Excerpts of the Expert Report of Dr. 

Stan McClellan Regarding Validity 

of U.S. Patent 8,274,902 

McClellan 902 Valid. Rep. 

6 Excerpts of the Expert Report of Dr. 

Stan McClellan Regarding Validity 

of U.S. Patent 7,106,702 

McClellan 702 Valid. Rep. 

7 Excerpts of the Expert Report of Dr. 

Stan McClellan - Infringement of 

U.S. Patent No. 7,106,702 By 

Microsoft Corporation

McClellan 702 Infr. Rep. 

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I. INTRODUCTION

Claims “directed to an improvement in the functioning of a computer” are not abstract. 

Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1338 (Fed. Cir. 2016). That rule resolves the § 101 

inquiry for the patents here. Even if the asserted claims were directed to some abstract idea, the 

claims—by themselves or in an ordered combination—nonetheless disclose an inventive concept. 

“Whether the claim elements or the claimed combination are well-understood, routine, 

conventional is a question of fact.” Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 

1121, 1128 (Fed. Cir. 2018). Here, at the very least, genuine issues of material fact preclude 

summary judgment. 

II. ARGUMENT

A. The ’160 Patent Asserted Claims Are Patent Eligible.

1. Alice Step One: The asserted claims are not directed to an abstract idea.

Computer-based claims which merely “automat[e] a conventional idea on a computer” or 

add “general-purpose computer components . . . post-hoc to a fundamental economic practice or 

mathematical equation” are directed to abstract ideas and thus are not patent eligible. SRI Int’l, 

Inc. v. Cisco Sys., Inc., 930 F.3d 1295, 1304 (Fed. Cir. 2019); Enfish, 822 F.3d at 1339. But those 

which are focused on a “specific asserted improvement in computer capabilities” are eligible under 

§ 101. Packet Intelligence LLC v. NetScout Sys., Inc., 965 F.3d 1299, 1309 (Fed. Cir. 2020).

Here, the claim language alone demonstrates that the claims are “necessarily rooted in 

computer technology in order to solve a specific problem in the realm of computer networks.” Id.; 

SRI, 930 F.3d at 1303. The ’160 patent provides a specific solution to a technological problem, 

providing tools for accurately forecasting performance of a network service based on service 

trends. This problem is purely technological and it does not have an analog in the context of 

economic or human activity. Microsoft does not even argue to the contrary. 

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Claim 1, which discloses a method of “determining communications network service 

trends, the method comprising the steps of: selecting two or more parameters of a network 

representative of a network service and variable in time,” does not simply “automat[e] a 

conventional idea on a computer” or add “general-purpose computer components . . . post-hoc to 

a fundamental economic practice or mathematical equation.” SRI, 930 F.3d at 1304; Enfish, 822 

F.3d at 1339. Rather, it recites a series of steps to solve a “specific problem in the realm of 

computer networks”—namely, providing tools for accurately forecasting performance of a 

network service based on service trends. See SRI, 930 F.3d at 1303; Amdocs (Israel) Ltd. v. Openet 

Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016) (holding that system for “reduc[ing] 

congestion in network bottlenecks” offered technological solution to a technological problem). 

The claim thus improves the functionality of a computer network by reciting a specific technique 

for solving a challenge unresolved by the prior art. See SpeedTrack Inc. v. Amazon.com, Inc., 2017 

WL 11046199, at *4 (N.D. Cal. Jan. 23, 2017) (holding that a method for accessing files in a data 

storage system was “directed at solving a challenge unresolved by the prior art in which a search 

in a hierarchical directory structure did not guarantee a result”). 

The specification also confirms that the claims are “directed to a technological solution to 

a technological problem.” See SRI, 930 F.3d at 1303 (relying on specification); Packet Intel., 965 

F.3d at 1309–10 (same). The specification explains that the invention “relates to network 

monitoring methods, and more particularly to methods of determining service trends in a 

telecommunications network.” ’160 patent (Microsoft Ex. A) at 1:3-5. The specification teaches 

that “[a]t present there are no tools for forecasting accurately the failure of a network service.” Id.

at 1:24–25. The claimed invention attempts to fill this void by describing and claiming a “method 

of determining communications network service trends” that solves the prior art problem that 

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“variation [in service quality] over time of the monitored indicator cannot be determined.” Id. at 

1:18-19. 

Specifically, the claimed invention leverages network parameters to determine the strategic 

effectiveness of a network service. McClellan 160 Infr. Rep. ¶ 32. The 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. ’160 patent at 2:40-45, 3:20-29. Instead, 

the ’160 patent describes a technological framework by which data and parameters are formulated 

into model-based service indicators. Id. at 3:50-52; 5:50-57; McClellan 160 Infr. Rep. ¶¶ 25-26. 

The collection of services indicators extrapolate into the domain and key performance indicators 

required by a network service provider. ’160 patent at 2:57-63; 3:3-10; 4:52-57. This process, 

which is necessarily routed in the functioning of the network, aids in determining critical outcomes 

such as pending capacity issues and/or service failures. Id. at 2:10-12; 5:26-32; McClellan 160 

Infr. Rep. ¶ 26. Just like the patent specification at issue in SRI, the specification here identifies 

problems with existing computer networks and explains how “the claimed invention is directed to 

solving these weaknesses.” SRI, 930 F.3d at 1303–04. 

Notably, this end-to-end framework for managing critical network services via modelbased service indicators, described in the specification and recited in the claims, represents an 

ordered combination that was unique and inventive at the time of disclosure, when “no tools” were 

available for “forecasting accurately the failure of a network service.” ’160 patent at 1:20-25. The 

claims are thus not directed to an abstract idea. See ESW Holdings, Inc. v. Roku, Inc., No. 

6:19-CV-00044-ADA, 2019 WL 10303653, at *3–4 (W.D. Tex. May 13, 2019) (quoting McRO, 

Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1313-14 (Fed. Cir. 2016) (“Thus, a court 

must look to the claims as an ordered combination, without ignoring the requirements of the 

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individual steps, and determine whether the claims in these patents focus on a specific means or 

method that improves the relevant technology or are instead directed to a result or effect that itself 

is the abstract idea and merely invoke generic processes and machinery.”) 

The Court’s claim construction order further confirms that the ’160 patent solved a problem 

unique to the technological context. The Court construed various claim terms of the ’160 patent, 

including: “network parameter” as including “parameters such as ‘packet losses; time-delays 

between packets; jitter or stability; band width; bandwidth stability; and the directionality of the 

communication’” and “service indicator” as indicating “the quality of a network service.” Dkt. 62 

(Case -454) at 4. The Court’s constructions demonstrate that the ’160 patent claims are specifically 

directed to improving previously unresolved technical issues attendant to computer networks. 

Because the claims here are directed to a specific improvement in the functioning of 

computer networks, they are not directed to an abstract idea. 

Microsoft contends that the ’160 patent is “directed to [the] abstract [idea of] ‘mathematical 

calculations,’ [or more specifically] ‘mathematical algorithms for performing calculations’” 

arguing the ’160 Patent “focus[es] on the use of a mathematically determined ‘trend’ for prediction 

without more.” Mot. at 4. Microsoft’s gross oversimplification of the claims in order to divine an 

abstract idea in the claims violates well-established case law. 

As this Court recently explained: 

“The abstract idea exception prevents patenting a result where ‘it 

matters not by what process or machinery the result is 

accomplished.’” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 

F.3d 1299, 1312 (Fed. Cir. 2016) (quoting O'Reilly v. Morse, 56 U.S. 

62, 113 (1854)). The Court is mindful that it “‘must be careful to 

avoid oversimplifying the claims’ by looking at them generally and 

failing to account for the specific requirements of the claims.” Id.

at 1313 (quoting In re TLI Communications LLC Patent Litig., 823 

F.3d 607, 611 (Fed. Cir. 2016)). . . . During this first step, it is 

crucial to “articulate what the claims are directed to with enough 

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specificity to ensure the step one inquiry is meaningful,” because 

all patents “embody, use, reflect, rest upon, or apply laws of 

nature, natural phenomena, or abstract ideas.” Thales [Visionix 

Inc. v. United States, 850 F.3d 1343, 1347 (Fed. Cir. 2017)]; Alice 

[Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (quoting Mayo 

Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 

(2012)]. 

ESW Holdings, Inc, 2019 WL 10303653, at *3–4 (emphasis added). 

While the ’160 patent claims employ the use of mathematical calculations like many of the 

patent-eligible claims cited above, they are not directed to “mathematical calculations” or 

“mathematical algorithms for performing calculations.” Rather, they provide tools for accurately 

forecasting performance of a network service based on service trends. Microsoft’s own expert 

acknowledges that the claims are not simply directed to mathematical calculations but rather are 

directed to improvements in the field of network management. See, e.g., Coates 160 Invalid Rep. 

¶ 412 (acknowledging that patents in the same field as the ’160 patent provide for “improv[ing] 

the management of voice services” and “the ability to predict whether a service quality indicator 

will cross a threshold will improve a service administrator’s or provider’s ability to manage the 

service”); id. ¶¶ 417-418 (discussing how an alleged prior art combination disclosing the ’160 

patent claims provided for “improve[d] network management abilities”); id. ¶ 427 (same for a 

“improve[d] network management”); id. ¶ 431-432 (while discussing claim 1’s limitations, noting 

that “predicting whether a service quality indicator will cross a threshold can improve a service 

provider’s ability to manage the service”). Thus, even Microsoft’s expert agrees that, at a 

minimum, the claimed invention is directed to “improve[d] network management” rather than 

simply a mathematical calculation or mathematical algorithms. 

Notably, claim 1’s limitations require the performance of specific, detailed steps at specific 

points in a communications network, such as (1) “selecting two or more parameters of a network 

representative of a network service and variable in time,” (2) “measuring and/or calculating at two 

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or more times values of the network parameters,” (3) “determining at two or more times the value 

of a service indicator as a function of said measured and/or calculated parameter values,” 

(4) “determining a trend of the indicator as a function of said determined indicator values,” and 

(5) “determining as a function of the trend of the indicator a time of the service indicator crossing 

a defined threshold.” The above steps are also not abstract because non-computer-based 

communications networks did not, and were incapable of, performing these steps as laid out in the 

claims. 

Moreover, since these steps are limited to a computer network—see, e.g., ’160 patent claim 

12 (“A network and/or service management system using a method according to claim 1”)—they 

cannot be performed with pencil and paper, nor has Microsoft adduced incontrovertible evidence 

as to how the claimed steps could be performed using pencil and paper or within the mind of a 

human operator. For example, Microsoft does not explain how one could “measur[e] and/or 

calculat[e] at two or more times values of the network parameters” without a computer network. 

The same is true for the other limitations. One cannot “determin[e] at two or more times the value 

of a service indicator as a function of said measured and/or calculated parameter values” with 

pencil and paper or without a computer network because these steps are inextricably intertwined 

with the network. See McClellan 160 Valid Rep. ¶ 306 (explaining that a human being cannot 

perform the steps of the claims of the ’160 patent). Similarly, a computer network is essential for 

“calculating a mathematical expectation of financial loss as a function of the network service trend 

determined,” ’160 patent claim 10, and “determining a capacity to provide a network service at a 

given time,” id., claim 11. 

The broad framing Microsoft articulates—“mathematical calculations”—fails to examine 

the asserted claims as a whole. This is improper. See McRO, Inc., 837 F.3d at 1312 (“[T]he claims 

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are considered in their entirety to ascertain whether their character as a whole is directed to 

excluded subject matter.”); Diamond v. Diehr, 450 U.S. 175, 188 (1981) (same). Claim 1 does not 

baldly claim “mathematical calculations” or a “mathematical algorithm[] for performing 

calculations,” but rather discloses a particular method for accurately forecasting performance of a 

network service based on service trends through a series of steps tied to a physical system—a 

communications network. See ’160 patent claim 1 (“A method of determining communications 

network service trends. . . .”); id., claim 12 (“A network and/or service management system using 

a method according to claim 1.”) 

The Federal Circuit’s decision in Amdocs, 841 F.3d at 1299–1300, is instructive. There, 

the representative claim was for a “computer program product” and the court held that the claim, 

when framed at the appropriate level of abstraction, was not directed to an abstract idea: It was 

“tied to a specific structure of various components”—including “generic components” such as 

“network devices, gatherers, . . . a user interface server, and terminals or clients”—and did “not 

preempt any and all generic enhancement of data in a similar system.” Id. at 1301. So too here. 

Framed at the proper level of generality, the claim here is “tied to a specific structure of various 

components”—a computer network environment—and it does not preempt all software solutions, 

but instead offers a particular method for determining service trends in a telecommunications 

network. 

Microsoft also suggests that claim 1 is directed to an abstract idea because it requires only 

conventional network components and limitations that were allegedly taught by the prior art.1

 But 

1

 Microsoft conflates anticipation and obviousness with patent eligibility and mischaracterizes the 

prosecution history. Courts recognize that “[i]t is important to distinguish novelty and obviousness 

from the ‘inventive feature’ inquiry required by the Supreme Court in Alice. To be novel, a patent 

must include an element not present in the prior art. By contrast, the inventive feature question 

concerns whether the patent adds something to the abstract idea that is integral to the claimed 

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the conclusion does not follow the premise. As a matter of law, if the claim teaches a method that 

improves the functioning of computer hardware, the claim is not directed to an abstract idea. See 

Amdocs, 841 F.3d at 1300 (upholding patent eligibility though the “solution require[d] arguably 

generic components, including network devices and ‘gatherers’ which ‘gather’ information”);

Enfish, 822 F.3d at 1338 (explaining that “the invention’s ability to run on a general-purpose 

computer” did not “doom[] the claims” because they were also “directed to an improvement in the 

functioning of a computer.”). 

Separately, Microsoft fixates on claim 1’s verbs, contending that the claim uses 

“result-based” like “measure” and “determine,” and accordingly, the claim does not sufficiently 

describe how the result will be accomplished. Mot at 8. But this argument follows only by 

tautology: Microsoft defines the “result” of the patent—i.e., the “abstract idea”—as “mathematical 

calculation,” so it is no wonder that accomplishing that result by the same language is “resultoriented.” The patent does not merely claim a result but instead teaches a specific sequence of 

steps for doing so. For that same reason, even if the claim uses “functional, result-based 

language”—whatever that means—“the language of the claim and the specification are directed to 

more than just these results.” See Broadcom Corp. v. Netflix Inc., 2021 WL 4170784, at *12 (N.D. 

Cal. Sept. 14, 2021). 

Numerous cases with materially indistinguishable language upholding patent eligibility 

confirm that the use of functional language in claims, standing alone, does not render claims 

abstract. See Amdocs, 841 F.3d at 1299 (upholding a claim involving a “computer program 

product” comprising “receiving . . . a first network accounting record,” “correlating” that record 

invention.” Cogent Medicine, Inc. v. Physicians Interactive Holdings, Inc., 70 F. Supp. 3d 1058, 

1065 n.3 (N.D. Cal. 2014) (quotation marks and citations omitted). Section 101 was not at issue 

during prosecution of any of the patent claims. 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 13 of 31
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with accounting information from a second source, and “using” that accounting information “to 

enhance the first network accounting record.”); Finjan, Inc. v. Blue Coat Systems, Inc. 879 F.3d 

1299, 1303–04 (Fed. Cir. 2018) (upholding a method comprising “receiving . . . a Downloadable,” 

“generating . . . a security profile that identifies suspicious code in the received Downloadable,” 

and “linking . . . the . . . security profile to the Downloadable before a web server makes the 

Downloadable available to web clients”); SRI, 930 F.3d at 1301 (upholding a method comprising 

“deploying a plurality of network monitors,” “detecting . . . suspicious activity,” “generating

. . . reports of said suspicious activity,” and “automatically receiving and integrating the reports 

of suspicious activity”). 

Moreover, the dependent claims further indicate that the claims are necessarily tied to a 

computer network and provide tools for accurately forecasting performance of a network service 

based on service trends. For example, claim 2 limits the claimed invention to a “network service 

[] selected from the group comprising: voice; videophone; telephone; multimedia; video on 

demand; private virtual network; real time data; interactive data; and data stream services.” 

Likewise, claim 11 requires “determining a capacity to provide a network service at a given time” 

and claim 12 limits the claims to “[a] network and or network management system.” ’160 patent 

claims 11-12. 

In sum, neither claim 1 nor the dependent claims of the ’160 patent are directed to an 

abstract idea. 

2. Alice Step Two: The asserted claims, singly or as an ordered combination, 

solve a technology-based problem, and thus disclose an inventive concept. 

A claim survives Step Two if the “claimed elements—individually and as an ordered 

combination—recite an inventive concept.” Cellspin Soft, Inc. v. Fitbit, Inc., 927 F.3d 1306, 1316 

(Fed. Cir. 2019) (quotation marks omitted). “An inventive concept reflects something more than 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 14 of 31
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the application of an abstract idea using well-understood, routine, and conventional activities 

previously known to the industry.” Id. 

“Whether a claim element or combination of elements is well-understood, routine and 

conventional to a skilled artisan in the relevant field is a question of fact. Any fact, such as this 

one, that is pertinent to the invalidity conclusion must be proven by clear and convincing 

evidence.” Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). “[A]n adverse judgment 

against the patentee is improper when no factual evidence is provided for ‘whether the claimed 

invention is well-understood, routine, and conventional.’” eCeipt LLC v. Homegoods, Inc., No. 

W-19-CV-00032-ADA, 2019 WL 10302271, at *7 (W.D. Tex. May 20, 2019) (citing Berkheimer). 

Here, beyond parroting the language of the case law and mischaracterizing the prosecution history, 

Microsoft never even attempts to carry its burden to show—with evidence—why each claim 

limitation taught by claim 1 (or the other dependent and independent claims) is not inventive. That 

is because it cannot. 

Even assuming the abstract idea of “mathematical calculations” or “mathematical 

algorithms for performing calculations,” the claims disclose an inventive concept through at least 

the ordered combination of the limitations. For instance, the claims of the ’160 patent provide a 

specific structure to the methods claimed therein, where “indicative network parameters” are 

subject to “a function” which provides the ability to “determine . . . the value of a service 

indicator.” McClellan 160 Valid. Rep. ¶ 310. 

Microsoft fails to “consider the elements of each claim both individually and ‘as an ordered 

combination’ to determine whether the additional elements ‘transform the nature of the claim’ into 

a patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78–79). As this 

Court has noted, “even if each claim element, by itself, was known in the art, an inventive concept 

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can be found in the non-conventional and non-generic arrangement of known, conventional 

pieces.” eCeipt, 2019 WL 10302271, at *3 (quoting BASCOM Global Internet Servs., Inc. v. AT&T 

Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016)) (additional citation omitted). 

Here, the ordered combination reveals an inventive concept. As Brazos’s expert explains: 

[T]he sequence of service indicators is subject to “a function” which 

provides the ability to “determine a trend of the indicator.” The trend 

of the indicator is subject to “a function” which provides the ability 

to “determine . . . the time of the service indicator crossing a defined 

threshold.” The sequence and action of the “functions” and 

“determinations” which proceed from the basic measurement of 

“network parameters” is the essence of the disclosure in the ’160 

patent, which concludes with an implementation of a “service 

management system” dependent on these outcomes. This sequence 

and action is not foretold or anticipated by methods which provide 

some measurement of “user experience” for the purpose of 

“network management,” nor was it anticipated by technologies, 

methods, algorithms, or processes of the era. Instead, conventional 

approaches focused on collecting and displaying data related to 

“system performance” and “network statistics” for the purposes of 

network management. Network management is not service 

management. User experience is not a trend of a service indicator. 

A service indicator is not a collection of network parameter 

measurements. The observation of network parameters and 

extension of collections of those parameters into service indicators 

and trends thereof, which was not conventional and is not 

disclosed in the prior art. 

McClellan Valid. 160 Rep. ¶ 310; see also supra Section (III)(A)(1)(a) (discussing ordered 

combinations in Claim 1). Microsoft and its expert failed to conduct an “ordered combination” 

analysis or otherwise rebut this evidence. Indeed, Microsoft’s motion is entirely silent on the issue 

of whether the claims disclose an inventive ordered combination. Because it is Microsoft’s burden 

to make this showing, summary judgment is inappropriate. 

Finally, Microsoft premises its argument on the use of generic network components by the 

patent claims and asserts that somehow, their inclusion precludes the ’160 patent from disclosing 

an “inventive concept.” But the patent in BASCOM also recited the use of generic computer and 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 16 of 31
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network components, yet that did not preclude it from disclosing an inventive concept under Alice

Step Two. 827 F.3d at 1349–50 (“[T]he limitations of the claims, taken individually, recite generic 

computer, network and Internet components, none of which is inventive by itself.”). There is no 

requirement that to be patent-eligible, the ’160 patent must invent or employ the use of 

special-purpose hardware. Enfish, 822 F.3d at 1338-39 (the court is “not persuaded that the 

invention’s ability to run on a general-purpose computer dooms the claims” if the claims “are 

directed to an improvement in the functioning of a computer”). As explained, the claims 

nonetheless disclose inventive steps beyond the well-understood, routine, or conventional. 

B. The ’902 Patent Asserted Claims Are Patent Eligible. 

1. Alice Step One: The asserted claims are not directed to an abstract idea. 

Like the ’160 patent, the ’902 patent is directed to an improvement in computer 

functionality itself, specifically, monitoring packet loss in advanced wired and/or wireless network 

systems. Claims such as these which are focused on a “specific asserted improvement in computer 

capabilities” are eligible under § 101. Packet Intel., 965 F.3d at 1309. 

The claim language alone demonstrates that the claims are “necessarily rooted in computer 

technology in order to solve a specific problem in the realm of computer networks.” SRI, 930 F.3d 

at 1303; Packet Intel., 965 F.3d at 1309. The ’902 patent discloses and claims a technological 

process for monitoring packet loss that can be deployed from a limited number of locations on a 

network, ’902 patent (Microsoft Ex. G) at 1:51-56, and still obtain information on the loss rates on 

many individual links of that network, whether such links are branching or non-branching. 

McClellan 902 Infr. Rep. ¶ 36. The claims of the ’902 patent require the performance of specific, 

detailed steps in a wireless and/or wired computer network, such as “collecting data on 

downstream packet losses at a single collection point in a network” and “estimating a packet loss 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 17 of 31
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rate on at least one path that begins or ends on an intermediate node and that includes or begins or 

ends on an intermediate node that is a branch point of the network.” ’902 patent claim 1. At the 

time of filing, monitoring devices for conventional wired and/or wireless computer networks did 

not perform the steps laid out in the ’902 claims, and could not estimate packet loss on 

un-monitored segments of a network. Id. 3:45-57. This problem is purely technological and does 

not have an analog in the context of economic or human activity. 

Claim 1, which discloses a method of “collecting data on downstream packet losses at a 

single collection point in a network that branches, downstream of the collection point, toward a 

plurality of end nodes and that includes nodes intermediate the collection point and at least some 

of the end nodes,” ’902 patent at 1:12-19, does not simply “automat[e] a conventional idea on a 

computer” or add “general-purpose computer components . . . post-hoc to a fundamental economic 

practice or mathematical equation,” SRI, 930 F.3d at 1304; see also Enfish, 822 F.3d at 1339. 

Rather, it recites a series of steps to solve a “specific problem in the realm of computer 

networks”—namely, monitoring and estimating packet losses along multiple data paths at a single 

collection point or node in advanced wired and/or wireless networks with a plurality of nodes. See 

SRI, 930 F.3d at 1303; Amdocs, 841 F.3d at 1300. The claims thus improve the functionality of a 

computer network by reciting a specific technique for solving a challenge unresolved by the prior 

art. See SpeedTrack Inc., 2017 WL 11046199, at *4. 

The specification also confirms that the claims are “directed to a technological solution to 

a technological problem.” See SRI, 930 F.3d at 1303 (relying on specification); Packet Intel., 965 

F.3d at 1309–10 (same). The specification explains that the invention relates to “methods for 

monitoring the performance of networks, and more particularly to the determination of packet loss 

rates.” ’902 patent at 1:6-8. The specification teaches that the “performance of data networks is 

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sensitive to the loss of packets,” id. at 1:12–13, and that there “remains a need for methods of 

monitoring packet losses that can be deployed from a limited number of locations on the network 

and still obtain information on the loss rates on many individual links,” id. at 1:45-48. The ’902 

patent solves this problem by inventing a “method involv[ing] collecting data on downstream 

packet losses at a single point in a network, and from the collected data, estimating packet loss 

rates on at least two subnetworks downstream of the collection point...” Id. at 52-56. The method 

also involves “data collection [] performed by a dedicated hardware monitoring device. Id. at 1:59, 

claim 2. Thus, like the specification in SRI, the ’902 specification here identifies problems with 

existing computer networks and explains how “the claimed invention is directed to solving these 

weaknesses.” See SRI, 930 F.3d at 1303–04. 

Indeed, the claims expressly provide an improvement over previous methods for 

monitoring and estimating packet losses in advanced wired and/or wireless networks. The ’902 

claim limitations require the performance of specific, detailed steps in a wireless and/or wired 

computer network, such as (1) “collecting data on downstream packet losses at a single collection 

point in a network,” and (2) “estimating a packet loss rate on at least one path that begins or ends 

on an intermediate node and that includes or begins or ends on an intermediate node that is a branch 

point of the network.” The above steps are also not abstract because conventional non-computerbased networks did not perform these steps as laid out in the claims.2

Because the claims here are directed to a specific improvement in the functioning of 

network, they are not directed to an abstract idea. 

2

 Further, the Court construed various claim terms of the ’902 patent, including: “packet loss rate” 

as “the fraction of packets that are lost over a suitable time-averaging interval wherein the ‘timeaveraging interval’ is an interval of time over which an average is taken.” Dkt. 62 (Case -454) at 

6. This demonstrates that the ’902 patent deals with technical issues that arise only in wireless 

communications networks and as such are necessarily technological in nature. 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 19 of 31
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Microsoft contends that the ’902 patent is directed to the abstract idea of “using an 

algorithm—any algorithm—to estimate packet loss.” Mot. at 14. This is simply not correct. Rather, 

the claims require at least (1) “collecting data on downstream packet losses at a single collection 

point in a network,” (2) “estimating a packet loss rate on at least one path that begins or ends on 

an intermediate node and that includes or begins or ends on an intermediate node that is a branch 

point of the network,” and (3) “a circuit configured to compute from the collected data an estimate 

of a packet loss rate on at least one path that begins or ends on an intermediate node and that 

includes or begins or ends on an intermediate node that is a branch point of the network.” ’902 

patent claim 1; id., claim 6. It is self-evident that these claims are directed to more than using any 

algorithm to estimate packet loss. Not only do the claims require packet loss data collection at a 

specified single collection point on a network, but they additionally spell out the specific data paths 

that are capable of being monitored. As explained above, Microsoft’s gross oversimplification of 

the claims in order to divine an abstract idea in the claims violates well-established caselaw. See, 

e.g., ESW Holdings, 2019 WL 10303653, at *3–4 (collecting Federal Circuit case law). 

 “A court must look to the claims as an ordered combination, without ignoring the 

requirements of the individual steps,” and determine “whether the claims in these patents focus on 

a specific means or method that improves the relevant technology or are instead directed to a result 

or effect that itself is the abstract idea and merely invoke generic processes and machinery.” 

McRO, 837 F.3d at 1313-14. Microsoft violates this principle by dissecting the claim down to its 

individual elements and ignoring the steps in an ordered combination. The asserted claims cannot 

be said to be “abstract” because when viewed “as a whole” the claims are directed to a method and 

system for monitoring packet loss on a computer network that can be deployed from a limited 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 20 of 31
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number of location points on the network and still obtain information on the loss rates on many 

individual links or data paths as specified in the claims. 

The Federal Circuit’s holding in Enfish is instructive. In that case, the Federal Circuit 

reversed the lower court and found that two software-related patents were “directed to an 

innovative logical model for a computer database” and therefore were patent eligible under Section 

101. 822 F.3d at 1330. The Court specifically found that the claims at issue were “directed to a 

specific improvement in the way computers operate.” Id. at 1336. Similarly, here the claims are 

not directed to an abstract idea within the meaning of Alice because they are directed to a specific 

improvement in the way computer networks work—they disclose a method that is capable of 

monitoring packet loss along multiple data paths at a single collection point in advanced wired 

and/or wireless network systems. Like the claims in Enfish, “the plain focus of the claim[ ] is on 

an improvement to computer functionality itself, not on economic or other tasks for which a 

computer is used in its ordinary capacity.” 822 F.3d at 1336. Thus, the claims are not directed to 

an abstract idea. 

Finjan, 879 F.3d 1299 is similarly instructive. In Finjan, this Court explained that “the 

claims were not merely focusing on a desired result, but instead recited specific steps that 

accomplished the result.” eCeipt LLC, 2019 WL 10302271, at *5 (citing Finjan). The same is the 

case here. The claims do not simply focus on a desired result, but rather recite the specific steps 

that accomplish that result. The claims are not directed to an abstract idea. 

2. Alice Step Two: The asserted claims, singly or as an ordered 

combination, solve a technology-based problem, and thus disclose an 

inventive concept. 

Again, Microsoft fails to “consider the elements of each claim both individually and ‘as an 

ordered combination’ to determine whether the additional elements ‘transform the nature of the 

claim’ into a patent-eligible application.” Alice, 573 U.S. at 217; see also eCeipt 2019 WL 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 21 of 31
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10302271, at *3. Microsoft also completely fails to carry its burden to establish by clear and 

convincing evidence, using actual factual evidence rather than attorney argument, that the claimed 

invention either by its elements alone or in ordered combination is well-understood, routine, and 

conventional. Berkheimer, 881 F.3d at 1368; eCeipt LLC, 2019 WL 10302271, at *7. 

Microsoft again improperly argues that the use of generic network components by the 

patent claims somehow precludes the claims from disclosing an “inventive concept.” But the 

patent in BASCOM also recited the use of generic computer and network components, yet that did 

not preclude it from disclosing an inventive concept under Alice Step Two. 827 F.3d at 1349–50 

(“[T]he limitations of the claims, taken individually, recite generic computer, network and Internet 

components, none of which is inventive by itself.”). There is no requirement that to be 

patent-eligible, the ’902 patent must invent or employ the use of special-purpose hardware. The 

claims nonetheless disclose inventive steps beyond the well-understood, routine, or conventional. 

As Brazos’s expert explains: 

“[t]The ’902 patent discloses an inventive process for monitoring 

packet losses that can be deployed from a limited number of 

locations on a network and still obtain information on the loss rates 

on many individual links of that network, whether branching or nonbranching links. As noted above, the claims of the ’902 Patent 

provide a specific structure to the methods and system claimed 

therein, require hardware and software, and produce a specific 

method of monitoring packet loss on a network, which was not 

conventional and is not disclosed in the prior art. 

McClellan 902 Valid Rep. ¶ 123. 

Further, prior to the ’902 patent, approaches purporting to describe network performance 

via sparse data were limited to highly specialized and nonstandard network deployments. These 

approaches relied on mathematical abstractions of the network architecture. Id. ¶¶ 70-72, 93, 96, 

100. Such abstractions were not representative of realistic network architectures, id. ¶¶ 78, 88, 93, 

and these approaches are not commonly used as a result. In contrast, the approach claimed by the 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 22 of 31
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’902 patent is applicable to networks with mild constraints, and is compatible with multiple 

intermediate node configurations. ’902 patent at 3:25-30, claim 1. As such, at the time of filing, 

monitoring devices for conventional wired and/or wireless computer networks did not perform the 

steps laid out in the ’902 claims, and could not estimate packet loss on un-monitored segments of 

a network. Id. 3:45-57. 

Microsoft and its expert fail to rebut this evidence, much less carry their burden to establish 

that there is no disputed issue of material fact on this point. Further, Microsoft fails entirely to even 

conduct an ordered combination analysis. Because it is Microsoft’s burden to make this showing, 

summary judgment is inappropriate. 

C. The ’702 Patent Asserted Claims Are Patent Eligible. 

1. Alice Step One: The asserted claims are not directed to an abstract idea. 

The ’702 patent claims are focused on a “specific asserted improvement in computer 

capabilities” are eligible under § 101. Packet Intel., 965 F.3d at 1309. The ’702 patent provides a 

specific solution to a technological problem, maintaining high reliability in network functionality 

and/or resources in a network so that one or more back-ups may take over when functions and/or 

resources are lost due to failure or otherwise. This problem is purely technological and has no 

analog in the context of economic or human activity. 

The claims are “directed to a technological solution to a technological problem.” See SRI, 

930 F.3d at 1303; Packet Intel., 965 F.3d at 1309–10. The specification explains the prior art 

“approach for achieving the desired redundancy is to have every node in the network carry out 

AAA functions and distribute a duplicate copy of the user database to every node for maintenance 

thereon. In this manner, the destruction or lost [sic] of any one node is not fatal to the network as 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 23 of 31
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a whole.”3

 ’702 patent (Microsoft Ex. H) at 1:40-44. However, “[t]his database synchronization 

traffic can be considerably large and undesirably burdensome on the network.” Id. at 1:49-50. The 

claims of the ’702 patent “contemplate[] a new and improved method and/or system which 

overcomes the above-referenced problems and others.” Id. at 1:51-53. 

The claim language alone demonstrates that the claims are “necessarily rooted in computer 

technology in order to solve a specific problem in the realm of computer networks.” SRI, 930 F.3d 

at 1303; Packet Intel., 965 F.3d at 1309. For example, claim limitations require the performance 

of specific, detailed steps in a wireless computer network, such as (1) “selecting two of the plurality 

of nodes to be active nodes,” (2) “ activating the AAA functions of the active nodes,” 

(3) “monitoring the active nodes to determine if one of the active nodes gets disconnected from 

the network,” and (4) “if one of the active nodes gets disconnected from the network, selecting 

another of the plurality of nodes to become an active node,” (5) “activating the AAA functions of 

the node selected,” and (6) “informing the plurality of nodes that the node selected in step (d) has 

its AAA functions activated.” The above steps are also not abstract because conventional, 

non-computer-based communication networks did not perform these steps as laid out in the 

claims.4

 McClellan 702 Valid. Rep. ¶ 250. 

Moreover, each of the asserted claims cannot be said to be “abstract” because when viewed 

“as a whole” the claims are directed to a computer network-based process that greatly improves 

3

 The specification also dooms Microsoft’s preemption argument. See Mot. at 22 (arguing that the 

claims preempt the “abstract idea,” namely, redundancy, “in the context of AAA systems.”). The 

prior art systems already provide redundancy in AAA systems and are not covered by the claims. 

’702 patent at 1:40-53. 

4

 In addition, the Court construed various claim terms of the ’702 patent, including: “active nodes” 

as “node(s) in an active state of AAA functionality.” Dkt. 62 (Case -454) at 2. Microsoft provides 

no explanation as to how this concrete claim language is rooted in anything other than computer 

technology and thus not directed to an abstract idea. 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 24 of 31
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the functionality of wireless communications networks. Microsoft and its expert do not actually 

disagree with this point, but rather argues the claims do not improve the operation of “a computer, 

network node, or other networking component operates.” DeKok Valid. Rep. (Microsoft Ex. I) 

¶ 672. Microsoft misses the point of the claims and the invention. The claims improve the 

functionality of the network rather than any given network or computer component, and that is 

sufficient to take these claims outside of the ambit of § 101. The claims provide a network 

architecture that provides highly-available authentication, authorization, and accounting (“AAA”) 

capabilities in a communication network. ’702 patent at 1:50-55; McClellan 702 Infr. Rep ¶ 26; 

McClellan 702 Valid Rep. ¶ 260. The architecture functions via a subset of network elements 

which are “capable” of providing “AAA functionality.” ’702 patent at 1:55-61; 3:16-19; claim 1; 

McClellan 702 Valid. Rep. ¶ 258. These nodes are monitored, and if an active node becomes 

“disconnected” from the network, an inactive node is selected, activated, and begins providing the 

AAA function. ’702 patent 1:15-31. This approach is significant because a robust AAA capability 

is a necessary aspect of a network which provides valuable services for users. Id. 1:15-40; 

McClellan 702 Infr. Rep. ¶¶ 27, 29. A network with inadequate or non-functional AAA capability 

may be inefficient for authorized users or worse—exploited by unauthorized users. Thus, the 

provision of highly-available, resilient, and efficient AAA capability is critical to network 

operation. McClellan 702 Infr. Rep. ¶ 29; ’702 patent at 1:23-39. 

The overbroad framing Microsoft articulates as the alleged abstract idea—“employing a 

back-up mechanism for important functions when needed”—fails to examine the asserted claims 

as a whole. This is improper. See McRO, Inc., 837 F.3d at 1312 (“[T]he claims are considered in 

their entirety to ascertain whether their character as a whole is directed to excluded subject 

matter.”); Diamond, 450 U.S. at 188. 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 25 of 31
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Microsoft again suggests that claim 1 is directed to an abstract idea because it requires only 

conventional network components and limitations that were allegedly taught by the prior art. As 

explained supra at 8-9, that is contrary to law. See Amdocs, 841 F.3d at 1300; Enfish, 822 F.3d at 

1338. Moreover, the dependent claims further indicate that the claims are necessarily tied to a 

computer network. For example, claim 3 limits the claimed invention to a one where “each active 

node carries out the monitoring of the other.” Claim 8 requires “provisioning each of the plurality 

of nodes with a duplicate copy of a user database, each of said user databases being employed by 

its respective node to carry out AAA functions.” Likewise, claim 11 requires a “wireless 

communication network” wherein “active nodes monitoring 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.” In short, there can be no serious debate that the claims are rooted in specific 

technological advances related to the performance of wireless computer networks. 

2. Alice Step Two: The asserted claims, singly or as an ordered combination, 

solve a technology-based problem, and thus disclose an inventive concept. 

A claim survives Step Two if the “claimed elements—individually and as an ordered 

combination—recite an inventive concept.” Cellspin, 927 F.3d at 1316 (quotation marks omitted). 

“An inventive concept reflects something more than the application of an abstract idea using wellunderstood, routine, and conventional activities previously known to the industry.” Id. 

Microsoft largely ignores the claim elements and the asserted claims as a whole, and 

instead paraphrases the claims into a single phrase. And when Microsoft does consider the claim 

elements, it does so in isolation rather than as a whole. As Brazos’s expert explains, “[t]he ’702 

Patent provide a specific structure to the methods claimed therein, require hardware and software, 

and produce a specific method of maintaining AAA functionality for a wireless communications 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 26 of 31
22 

network, which was not conventional and is not disclosed in the prior art. This is explained above 

and throughout this report.” McClellan 702 Valid. Rep. ¶ 257. 

“At the time it was filed, the ’702 Patent disclosed a unique approach to providing a 

highly-available AAA function in a wireless telecommunication network via a subset of nodes 

which are ‘capable’ of providing the AAA function. These nodes are monitored, and if an active 

node becomes ‘disconnected’ from the network, an inactive node is selected, activated, and begins 

providing the AAA function.” Id. ¶ 258. 

Indeed, in addition to the above, Microsoft and its expert fail to dispute that: 

Prior to the ’702 Patent, the concept of “the AAA function” of a 

network was not implicitly a combination of several components or 

features which, acting together in a fashion specified by the claim 

language, were able to provide a form of high-availability for “the 

AAA function” of the network. Instead, as described previously, the 

several components providing aspects of “the AAA function” were 

individually considered as a protocol (RADIUS), a user database, 

and a collection of tools (middleware) to be used in implementation 

of various high- availability features, including network-based load 

balancing. This distinction is clear in the specification of the 

RADIUS protocol, for example, where the “acts” of authentication, 

authorization, and accounting are explicitly separated from the 

communication process, and are unspecified in terms of an 

integrated collection resulting in an “AAA function.” 

As a result, the ’702 patent conceived of ‘the AAA function’ for the 

first time as an integrated whole, implemented within a distributed 

network context but managed, monitored, and provisioned as a 

highly-available service, regardless of the underlying, constituent 

technologies or implementations. 

Id. ¶¶ 259-260. This unrebutted, even unchallenged, evidence precludes summary judgment. 

Further, Microsoft again fails to “consider the elements of each claim both individually 

and ‘as an ordered combination’ to determine whether the additional elements ‘transform the 

nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217 (citation omitted). 

Microsoft’s motion is entirely silent on the issue of whether the claims disclose an inventive 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 27 of 31
23 

ordered combination. Because it is Microsoft’s burden to make this showing, summary judgment 

is inappropriate. 

Prior art approaches were based around telecommunications standards and were highly 

specific to comport with conventional telecommunications requirements. The ’702 patent claims 

providing and maintaining a highly-available AAA capability in a communication network. 1:55-

2:3; McClellan 702 Infr. Rep. ¶¶ 30-31. In contrast, prior art at the time of filing applied only to 

traditional network access control methods using specific technologies which were not designed 

for ensuring high reliability of all aspects of a distributed AAA capability. The ’702 patent 

addresses certain ways that “the AAA function” of a communication network, including the user 

database, can be distributed and managed to ensure resiliency and provide constant availability. 

’702 patent at 3:15-31. The claims describe specific ways in which systems in a network which 

are capable of providing AAA features are managed and monitored to detect and recover from 

failures, id. at 1:55-2:16, 3:39-43, 3:53-55 (claim 1), and to provide synchronization for potentially 

distributed copies of a user database. Id. at 2:25-32, 3:46-55 (claim 1). As such, the ’702 patent 

claims and inventive concept is implemented within a distributed network context but managed, 

monitored, and provisioned as a highly-available network service. The claims of the ’702 patent 

are patent eligible. 

III. CONCLUSION 

For the foregoing reasons, the Court should deny Microsoft’s Motion for Summary 

Judgment of Patent Ineligibility of the Asserted Claims of U.S. Patent Nos. 7,366,160, 8,274,902, 

and 7,106,702. 

 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 28 of 31
24 

Dated: April 26, 2022 Respectfully submitted, 

SUSMAN GODFREY L.L.P. 

 By: /s/ Kalpana Srinivasan 

Kalpana Srinivasan 

California Bar No. 237460 

Anna Catherine Coll (pro hac vice) 

California Bar No. 337548 

1900 Avenue of the Stars, 14th Floor 

Los Angeles, California 90067-6029 

Telephone: (310) 789-3100 

Fax: (310) 789-3150 

ksrinivasan@susmangodfrey.com 

acoll@susmangodfrey.com 

J. Hoke Peacock III 

Texas Bar No. 15673980 

Max L. Tribble, Jr. 

Texas Bar No. 2021395 

Shawn Blackburn (pro hac vice) 

Texas Bar No. 24089989 

Bryce Barcelo 

Texas Bar No. 24092081 

1000 Louisiana Street, Suite 5100 

Houston, Texas 77002-5096 

Telephone: (713) 651-9366 

Fax: (713) 654-6666 

tpeacock@susmangodfrey.com 

mtribble@susmangodfrey.com 

sblackburn@susmangodfrey.com 

bbarcelo@susmangodfrey.com 

Elizabeth Aronson (pro hac vice) 

New York Bar No. 5704432 

1301 Avenue of the Americas, 32nd Floor 

New York, New York 10019 

Telephone: (212) 336-8330 

Fax: (212) 336-8340 

baronson@susmangodfrey.com 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 29 of 31
25 

Mark D. Siegmund 

State Bar No. 24117055 

STECKLER WAYNE CHERRY & LOVE, 

PLLC 

8416 Old McGregor Road 

Waco, Texas 76712 

Telephone: (254) 651-3690 

Facsimile: (254) 651-3689 

mark@swclaw.com 

COUNSEL FOR PLAINTIFF WSOU 

INVESTMENTS, LLC D/B/A BRAZOS 

LICENSING AND DEVELOPMENT 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 30 of 31
26 

CERTIFICATE OF SERVICE 

The undersigned certifies that on April 26, 2022, the documents filed with the Clerk of 

Court via the Court’s CM/ECF system under seal in the above-captioned cases were subsequently 

served on all counsel of record by electronic mail. 

/s/ Kalpana Srinivasan 

Kalpana Srinivasan 

Counsel for Plaintiff 

Case 6:20-cv-00454-ADA Document 162 Filed 05/03/22 Page 31 of 31