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.

ZTE CORPORATION, ZTE (USA) INC. 

AND ZTE (TX), INC.,

Defendants.

C.A. NO. 6:20-cv-00487-ADA

C.A. NO. 6:20-cv-00488-ADA

C.A. NO. 6:20-cv-00494-ADA

C.A. NO. 6:20-cv-00496-ADA

DEFENDANTS’ SUR-REPLY CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 1 of 21
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TABLE OF CONTENTS

I. U.S. PATENT NO. 7,489,929 (CASE NO. 6:20-CV-00488-ADA) ...................................1

A. Term 1: “buffering bearer traffic” (Claim 11).........................................................1

1. WSOU’s Argument That ZTE Redefines “Buffering’ Is Incorrect.............1

2. WSOU’s Arguments Regarding Intrinsic And Extrinsic Evidence 

Are Incorrect. ...............................................................................................2

B. Terms 2-3: “characteristic” and “replacement hysteresis” (Claim 14)....................3

II. U.S. PATENT NO. 7,742,534 (CASE NO. 6:20-CV-00496-ADA) ...................................4

A. Term 1: “maximal number of sub-carriers” (Claims 4 and 7).................................4

B. Term 2: “means for selecting” / “means for determining” (Claim 6)......................6

1. WSOU’s Arguments Regarding The First “Means For Selecting” 

And The Second “Means For Selecting” Are Incorrect...............................7

2. WSOU’s Fails To Identify Structure For The Identified “Means 

For Selecting.” .............................................................................................7

3. The Claimed Transmitter Does Not Connote Structure...............................9

4. “Means For Determining” (Claim 6)...........................................................9

C. Term 3: “quality level” / “as a function of” (Claims 1, 2, 3, 5-9, 13, 16-18) ........10

III. U.S. PATENT NO. 8,451,839 (CASE NO. 6:20-CV-00487-ADA) .................................10

A. Term 1: “route” / “route-related information” (Claims 1, 3, 6, 8, and 11) ............10

B. Term 2: “said predefined using time indicates[ing] a [the] using time of 

said route” (Claims 1 and 6) ..................................................................................12

C. Term 3: “using time” (Claims 1, 6) .......................................................................13

IV. U.S. PATENT NO. 9,185,036 (CASE NO. 6:20-CV-00494-ADA) .................................13

A. Term 1: “data flow” (Claims 1, 6,-10, 12, 17-21, and 23-24) ...............................13

B. Term 2: “congestion condition . . .” (Claims 1, 12, 23, and 24)............................14

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 2 of 21
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TABLE OF AUTHORITIES

Page(s)

Cases

Aspex Eyewear, Inc. v. Marchon Eyewear, Inc.,

No. 11-1147, (Fed. Cir. 2012)....................................................................................................8

Berkheimer v. HP Inc.,

881 F.3d 1360 (Fed. Cir. 2018)..............................................................................................5, 6

Cellular Comms. Equip. LLC, v. Samsung Elec. Co. Ltd., et al., 

No. 6:14-CV-759, Markman Order (Dkt. 206) (E.D. Tex. March 29, 2016)............................9

CIF Licensing, LLC, d/b/a/ GE Licensing, v. Agere Systems, Inc., 

No. 07-170-JJF, Markman Order (D. Del. July 10, 2008).........................................................9

Dayco Prod., Inc. v. Total Containment, Inc.,

258 F.3d 1317 (Fed. Cir. 2001)..................................................................................................2

Ecolab Inc. v. Paraclipse, Inc.,

285 F.3d 1362, 1375 (Fed. Cir. 2002)......................................................................................10

Halliburton Energy Servs. V. M-I LLC,

514 F.3d 1244 (Fed. Cir. 2008)..................................................................................................9

Nautilus Inc. v. Biosig Instruments, Inc.,

572 U.S. 898 (2014)...............................................................................................................2, 4

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

350 F.3d 1348 (Fed. Cir. 2003)..................................................................................................4

Pause Technology, LLC v. TiVo, Inc., 

419 F.3d 1326 (Fed. Cir. 2005) .........................................................................................12, 15

Sitrick v. Dreamworks, LLC,

516 F.3d 993 (Fed. Cir. 2008)....................................................................................................2

SunRace Roots Enterprise Co., Ltd. v. SRAM Corp.,

336 F.3d 1298, 1303 (Fed. Cir. 2003)......................................................................................10

Warner-Lambert Co. v. Apotex Corp.,

316 F.3d 1348 (Fed. Cir. 2003) ...............................................................................................13

V-Formation, Inc. v. Benetton Group SpA,

401 F.3d (Fed. Cir. 2005)...........................................................................................................2

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 3 of 21
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Statutes

35 U.S.C. § 112(1)...........................................................................................................................2

35 U.S.C. § 112(2)...........................................................................................................................2

35 U.S.C. § 112(6)...........................................................................................................................2

35 U.S.C. § 112(a) .....................................................................................................................2, 29

35 U.S.C. § 112(b)................................................................................................................. passim

35 U.S.C. § 112(f).................................................................................................................. passim

35 U.S.C. § 112, ¶ 1.........................................................................................................................3

35 U.S.C. § 112, ¶ 2.............................................................................................................3, 17, 25

35 U.S.C. § 112, ¶ 6...........................................................................................................15, 16, 19

Patent Act.........................................................................................................................................3

Other Authorities

Wiley-IEEE Electrical and Electronics Engineering Disctionary, p. 84 (2004) (Ex. 

7) ................................................................................................................................................7

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 4 of 21
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I. U.S. Patent No. 7,489,929 (Case No. 6:20-cv-00488-ADA)

A. Term 1: “buffering bearer traffic” (Claim 11)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary 

meaning

“During a handoff process, all data from the mobile station is 

buffered at the mobile station or all data at the network side is 

buffered at the network side until the handoff process is complete.”

1. WSOU’s Argument That ZTE Redefines “Buffering’ Is Incorrect.

Contrary to WSOU’s allegations, WSOU Reply Br., p. 1, ZTE did not admit that ZTE’s 

proposed construction redefines the term “buffering.” Rather, ZTE explained that the meaning of 

the term “buffering” itself specifically requires to qualify where to buffer and how long to buffer.

First, the term “buffering” itself requires location and duration. As explained in ZTE 

Defendants’ Opening Br., p. 7, it is well-known in the art that “buffering” is an operation of 

temporarily storing data being sent or received. The temporality aspect of the term “buffering” 

requires qualification of how long to buffer, and the duration of buffering is important because it 

affects the configuration and performance of the system, and thus, directly affects the scope of the 

claims. Id. pp. 7-8.

The data storage aspect of the term “buffer” requires to qualify where to store. Such 

qualification is important because there are different options in terms of location to store, and the

different buffering options require different hardware and/or software configuration, and thus 

directly affects the scope of the claims. Id. p. 7. Therefore, without specifically qualifying the 

duration and location for buffering, the claim fails to inform those skilled in the art about the scope 

of the invention with reasonable certainty.

Second, WSOU fails to rebut that location and duration are important for the scope of the 

claim. Rather, WSOU alleges that ZTE seeks to add “extraneous limitations” that are 

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 5 of 21
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“unambiguously required.”1 WSOU Reply Br., p. 1. But, as explained above, without the 

understanding proposed by ZTE Defendants for this term, the term is indefinite.

2. WSOU’s Arguments Regarding Intrinsic And Extrinsic Evidence Are 

Incorrect.

WSOU asserts that “[f]aced with no intrinsic evidence to satisfy ZTE’s burden, ZTE points 

out to extrinsic evidence. . .” WSOU Reply Br., p. 1 (emphasis original). WSOU is incorrect.

First, Defendants’ proposed claim construction is fully supported by intrinsic evidence. 

ZTE Defendants referenced the specification. Defendants’ Opening Br., p. 8.

Second, WSOU’s argument that ZTE waived reliance on extrinsic evidence is incorrect. 

WSOU misstated Defendants’ argument—the reference to extrinsic evidence supported a 

POSITA’s understanding of the intrinsic evidence. For instance, the ’929 patent specification 

describes that the user data is “buffered is during the handoff process,” and is buffered “until the 

handoff process is complete.” As evident by the “buffering” dictionary discussion, a POSITA 

would have understood that the duration of handoff is short and less than one second. Therefore, 

it is clear to POSITA buffering is an operation of temporarily storing data being sent or received. 

Third, WSOU attempts to expand the scope of the claim without boundary and argues that 

the buffer traffic can be stored anywhere in the universe. WSOU Reply Br., p. 2. The ’929 patent

specification, however, limits buffering to “at the mobile station” and “at the network side.” The 

’929 patent, 6:34-39 (emphasis added). This is only portion of the ’929 patent specification 

describing the “buffering.” Courts2 rejected such improper expansion of the scope of the claims.

1 WSOU’s reliance on Dayco Prod., Inc. v. Total Containment, Inc., 258 F.3d 1317, 1327 (Fed. Cir. 2001), WSOU 

Reply Br., p. 1, is fatal. Unlike Dayco, here, the claim explicitly recites the term “buffering” which is an operation of 

temporarily storing data being sent or received. 2 See Nautilus, at 901 (2014); see also Sitrick, at 999 (Fed. Cir. 2008); V-Formation, at 1310 (Fed. Cir. 2005).

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 6 of 21
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Fourth, WSOU’s allegations that Defendants’ proposed claim construction is inconsistent 

is incorrect. WSOU asserts that “ZTE’s unrecited “until . . .” qualification is precluded by, and 

inconsistent with, the recited “while” qualification.” WSOU Reply Br., p. 2 (emphasis original). 

The Defendants use the term “while” in a general sense of duration, and the term “until” more 

specifies the end of the duration. Therefore, contrary to WSOU’s assertion, the “until . . .” 

qualification is not precluded by, or inconsistent with, the “while” qualification. 

Fifth, WSOU’s arguments regarding the specification and “all data” are unpersuasive. 

WSOU argues that “there is no need to interpret “all data,” in the context of that non-limiting 

description of an example embodiment.” WSOU Reply Br., p. 3. WSOU is incorrect. The issue 

here is not whether the relied portion of the specification is limiting or non-limiting example. The 

issue here is that WSOU’s arguments contradict the clear language of the specification. For 

instance, the lexicographers of the specification stated that “all user data for a mobile station 

involved in the example handoff process is buffered during the handoff process.” The ’929 

patent, 6:34-39. In contrast, WSOU argued that the ““all data” is not necessarily buffered” because 

some of the “all data” needs to be transmitted. See Defendants’ Opening Br., pp. 8-9. As mentioned 

above, the above cited portion (6:34-39) is the only portion in the ’929 patent specification 

describing the “buffering,” and yet, WSOU’s arguments contradict it. WSOU Reply Br., p. 3.

B. Terms 2-3: “characteristic” and “replacement hysteresis” (Claim 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning “Indefinite under 35 U.S.C. § 112(b).”

First, WSOU’s argument that Defendants offer no evidentiary basis for indefiniteness is 

incorrect. With respect to the term “characteristic,” as mentioned in Defendants Opening Br., pp. 

13-14, the specification fails to mention the term. And the plain and ordinary meaning of the term 

is extremely broad, so the untethered term is indefinite. See Defendants’ Opening Br., pp. 13-14; 

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 7 of 21
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see also Nautilus at 901. Similarly, the ’929 patent fails to define the “replacement hysteresis.”

Second, WSOU’s argument regarding the “pilot signal strength” is unpersuasive. WSOU 

alleges that “ZTE failed to substantively address, as exemplary disclosure also pertaining to the 

“characteristic” term. Dkt. 61 at 7 (citing ’929 patent, 2:59-3:2),” and that the Defendants are 

“ignoring the intrinsic evidence.” WSOU Reply Br., p. 4. WSOU is incorrect. 

In its Opening Br., WSOU merely stated that “WSOU submits that at least the following 

description of an example embodiment is relevant to the disputed terms,” and copied and pasted 

the entire paragraph from Column 2, line 59 to Column 3, line 2. WSOU did not explain how the 

paragraph is relevant to the disputed terms and did not point out which term in the paragraph is the 

“characteristic.” As such, the term is “not amenable to construction” without a speculation or a 

blind guessing, and thus the term is indefinite. See Novo Indus., L.P. v. Micro Molds Corp., 350 

F.3d 1348, 1353 (Fed. Cir. 2003). 

In its Reply Br., WSOU alleges that “[t]he cited passage discloses “pilot signal strength” 

as an example of the “characteristic” term.” WSOU Reply Br., p. 4. However, this allegation still 

does not help to determine the scope of the claim because WSOU merely said “pilot signal 

strength” is an example of the “characteristic”—even though the specification does not make this 

connection. WSOU fails to clarify how the specification provides such an example. Without such 

clarification, as mentioned above, the plain and ordinary meaning of the term “characteristic” is 

extremely broad and there is no way to determine the scope of the claim. 

II. U.S. Patent No. 7,742,534 (Case No. 6:20-cv-00496-ADA)

A. Term 1: “maximal number of sub-carriers” (Claims 4 and 7)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning “Indefinite under 35 U.S.C. § 112(b).”

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 8 of 21
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WSOU alleges that “ZTE makes no distinction between the words “maximal” and 

“maximum” (as recited in claims 4 and 7, respectively)—WSOU’s argument is unpersuasive. 

WSOU Reply Br., p. 4. WSOU merely makes the above conclusory assertion without providing 

what the distinction, if any, between the term “maximal” and the term “maximum” is in the context 

of alleged invention. In fact, the ’534 patent itself treats the two terms as identical terms. In 

particular, claim 4 recites “maximal number of sub-carriers,” and claim 7 recites “maximum

number of sub-carriers.” Therefore, WSOU’s arguments are not persuasive—and rather 

demonstrate the indefiniteness of these claims.

Additionally, WSOU argues that “maximal” is not a term of degree because it may be 

associated with numbers—WSOU’s argument here is also unpersuasive. WSOU Reply Br., p. 5. 

First, WSOU argues that the specification provides description of a numerical “maximal.” 

The ’534 patent, 4:11-14; see also WSOU Reply Br., p. 5. Most fatally, however, the provided 

portion of the specification does not mention the term “maximal” number of sub-carriers. Indeed, 

the entire specification does not mention the “maximal” or “maximum” number of sub-carriers.

Second, the issue is not whether the term “maximal” is a term of degree because it is or is 

not associated with numerical values (e.g., percentages are still terms of degrees), rather, the issue 

is whether the term has limits. For instance, claim 4 does not provide metes and bounds to the 

claim because the claim does not specify how the “threshold” and the “maximal number” of subcarriers are related or how the “maximal number” of sub-carriers are determined. 

Third, WSOU further alleges that “[t]he authority ZTE cites is inapposite.” WSOU Reply 

Br., p. 5. WSOU is incorrect. Here, Berkheimer3 applies as discussed in ZTE Defendants’ Opening 

3 WSOU further alleges that Berkheimer is distinguishable because it relied heavily on expert testimony. WSOU Reply 

Br., p. 6. WSOU is incorrect. In Berkheimer, the Federal Circuit affirmed the district court’s holding that the term 

“minimal redundancy” was indefinite as a term of degree because the specification lacked objective boundaries or 

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 9 of 21
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Br., p. 15. And, as discussed above, without reciting how the threshold is related to a maximal 

number of sub-carriers, it is unclear what isthe “maximal number” and how the “maximal number” 

is determined. Thus, the term is insolubly ambiguous, rendering the phrase indefinite.

B. Term 2: “means for selecting” / “means for determining” (Claim 6)

WSOU’s Proposed Construction Defendants’ Proposed Construction for “means 

for selecting”

Governed by 35 U.S.C. § 112(f)

Function: selecting a set of sub-carriers from the plurality of sub-carriers on which user data is to be 

communicated from a transmitter to a receiver

Structure: transmitter configured to perform 

corresponding operation(s), such as, (i) receive 

quality levels from receiver, (ii) transmit 

threshold indication to receiver, (iii) select the set 

of sub-carriers based at least in part on either the 

received quality level or the transmitted 

threshold indication (or both).

Structure: none disclosed.

Indefinite under 35 U.S.C. § 112(b)

WSOU’s Proposed Construction Defendants’ Proposed Construction for “means 

for determining”

Governed by 35 U.S.C. § 112(f)

Function: determining quality levels for sub-carriers 

Structure: receiver configured to perform 

corresponding operation(s), such as measure the 

SIR for sub carriers (see, e.g., 5:19-24). 

Structure: none disclosed.

Indefinite under 35 U.S.C. § 112(b)

In its Opening Br., WSOU argued that the terms “means for selecting” and “means for 

determining” are not governed by § 112, ¶6. WSOU Opening Br., pp. 9-10. In fact, in order to 

avoid the Court’s reduction of asserted claims, and to avoid acknowledging the need for 

construction of nine additional terms, WSOU further refused to acknowledge that these terms are 

governed by § 112, ¶6. See ZTE Defendants’ Opening Br., Ex. 6. Now, in its Reply Br., WSOU 

admits that the term “means-for-selecting” should be construed as means-plus-function under § 

112, ¶6. WSOU Reply Br., p. 6. Due to WSOU’s improper conduction, it has waived any 

objections here with regards to construing these terms.

examples of what constitutes “minimal”. See Berkheimer v. HP Inc., 881 F.3d 1360, 1363-64 (Fed. Cir. 2018). Like 

Berkheimer, the ’534 patent specification lacks objective boundaries or examples of what constitutes “maximal.”

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 10 of 21
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Nevertheless, WSOU unilaterally separated the term “means for determining” from the 

“means for selecting”. WSOU Reply Br., p. 8. As mentioned in Defendants’ Opening Br., the 

“means for determining” and the “means for selecting” are at the same position, and they should 

not be counted as two independent claims.

Additionally, in its Reply Br., WSOU improperly changed the alleged structure of the 

“means-for-selecting” from “receiver” to “transmitter . . .,” and thus has further waived its 

argument for this term. WSOU Reply Br., p. 6. Nevertheless, regardless of whether WSOU pointed 

to “receiver” or “transmitter,” the specification fails to provide any structure corresponding to the

“means for selecting,” as discussed below. 

1. WSOU’s Arguments Regarding The First “Means For Selecting” And 

The Second “Means For Selecting” Are Incorrect.

WSOU feigns confusion—for the first time in its Reply Br.—that it was unaware of which 

“means for selecting” term was identified for construction. WSOU Reply Br., p. 6. There was 

never confusion because ZTE Defendants identified the first “means for selecting” term for 

construction. In fact, in its Opening Br., WSOU acknowledged this fact and that the proposed 

function of the term “means for selecting” is “selecting a set of sub-carriers from the plurality of 

sub-carriers on which user data is to be communicated from a transmitter to a receiver,” that is, 

the alleged first “means for selecting” claim language. WSOU Opening Br., p. 9.

2. WSOU’s Fails To Identify Structure For The Identified “Means For 

Selecting.” 

As mentioned above, the inquiry here is whether any of “means for selecting” has a 

corresponding structure. None do. Indeed, the specification does not disclose any corresponding 

structure that performs the cited function of the first (or second) “means for selecting,” as discussed 

below, and WSOU’s estranged argument regarding unidentified qualifiers as structure is further 

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 11 of 21
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erroneous. In its Reply Br., WSOU argues that the structure of the “means for selecting” is the 

“transmitter . . .” WSOU Reply Br., pp. 6-8. WSOU is incorrect for the following reasons.

4

First, the claim recites “an apparatus”, “a transmitter” and “a receiver” as three independent 

elements. The claim also recites that “the apparatus comprising: means for selecting.” While the 

claim clearly recites that the “means for selecting” is included in the “apparatus,” WSOU alleges 

that the “means for selecting” is the transmitter (and originally alleged receiver), without providing 

any reasoning to reconcile these contradictions. Therefore, WSOU is incorrect.

Second, the term “configured to” is well-known functional language.5 Thus, the 

“transmitter configured to perform . . .” is entirely circular. As a cart before horse, WSOU merely 

lists the function (i.e., receiving, transmitting, selecting) that the transmitter allegedly performs, 

but fails to identify the structure. Therefore, WSOU is incorrect.

Third, WSOU argues that “the “selecting” qualifiers themselves recite algorithmic 

structure for the transmitter by reciting limitations. WSOU Reply Br., p. 7 (emphasis added). In 

fact, WSOU is fabricating structure untethered from the specification. Nowhere does the 

specification describe an “algorithmic structure.” Therefore, WSOU is incorrect.

Fourth, WSOU provides some portions of the ’534 patent specification but none of them 

describes a structure corresponding to the recited function. WSOU Reply Br., pp. 7-8. All the 

portions cited by WSOU are functional. None of the portions cited by WSOU describe structure

performing the function. Therefore, WSOU fails to identify any structure.

Fifth, WSOU also argues that the unidentified “selecting” language acts as structural 

WSOU Reply Br., p. 7 (emphases original). WSOU is incorrect. A functional term cannot become 

4 Although not relevant for this construction, WSOU also fails to identify structure for the second “means for 

selecting.” See ZTE Defendants’ Opening Br., pp. 15-19. 5 See, e.g., Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., No. 11-1147 (Fed. Cir. 2012).

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 12 of 21
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a structural term by itself just because no party included it in the proposed function/structure. There 

is no presumption that a claim term is structural. Therefore, WSOU’s arguments are incorrect.

3. The Claimed Transmitter Does Not Connote Structure.

The “transmitter” here is not a generic, well-known transmitter in cellular radio 

communication. Rather, the “transmitter” here is the very element of the alleged invention, and the 

claimed “means for selecting” are the key components of the “transmitter.” See the ’534 patent, 

5:36-37. And yet, the ’534 patent specification fails to provide structure of the claimed 

“transmitter.” A POSITA would not even understand the claimed “means for selecting” are 

hardware or software. As such, the claims defeat “the public notice function of patent claims.” 

Halliburton Energy Servs. V. M-I LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008).

4. “Means For Determining” (Claim 6)

In its Reply Br., WSOU finally admits that the term “means for determining” should be 

construed as means-plus-function under § 112, ¶6. WSOU Reply Br., p. 8. However, WSOU 

argues that the “receiver configured to perform corresponding operation(s), such as measure the 

SIR for sub carriers (see, e.g., 5:19-24)” is the structure corresponding to the “means for 

determining.” WSOU Reply Br., p. 8. WSOU is incorrect. First, WSOU just now in its Reply Br., 

first raises this proposed structure. As such, WSOU waived such argument. Second, regardless,

WSOU’s new structure is merely functional, and not structural.6 It does not provide any 

corresponding structure that performs the described function. Indeed, the specification fails to

6 WSOU further assets that courts have found that “receiver,” or a “mobile terminal” having receiver functionality, 

connote definite structure. WSOU’s Reply Br., p. 9. WSOU is incorrect. Both CIF Licensing and Cellular do not 

apply here. Unlike CIF Licensing, the ’534 patent specification fails to provide any corresponding structure that 

performs the function of the claimed “means for determining.” Unlike Cellular, the function of the term “means for 

determining” is not function that generic mobile terminal receiver performs. It must have hardware and/or software 

specifically configured or programmed to perform the function.

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 13 of 21
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mention the term “means for determining.” As such, WSOU is unable to identify any structure, 

and WSOU’s “arguments” are merely baseless assertions. 

C. Term 3: “quality level” / “as a function of” (Claims 1, 2, 3, 5-9, 13, 16-18)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning “One of a signal-to-interference ratio, a bit error rate, or a 

modulation scheme.”

WSOU alleges that ZTE Defendants are impermissibly including an indefiniteness 

argument. WSOU Reply Br., p. 10. WSOU is incorrect. As clearly mentioned in Defendants’ 

Opening Br. pp. 19-20, Defendants objected to WSOU’s improper expansion of the claimed scope.

WSOU also alleges that “ZTE failed to overcome the “especially strong” presumption 

against “import[ing] virtually the entirety of claim 8, verbatim, into claim 6,” as ZTE proposes.” 

WSOU’s Reply Br., p. 10. WSOU is incorrect.

First, the “especially strong” presumption mentioned in SunRace is “when the limitation in 

dispute is the only meaningful difference between an independent and dependent claim, and one 

party is urging that the limitation in the dependent claim should be read into the independent 

claim.”7 Here, both WSOU’s alleged claims are dependent claims (claims 6 and 8), and thus, the 

“especially strong” presumption mentioned in SunRace does not apply. 

Second, Defendants’ proposed claim construction is based on the specification (the ’534 

patent, 3:14-26), which is the only portion in the specification providing description regarding the 

claimed “quality level.” The specification does not provide any other type of quality level.

III. U.S. Patent No. 8,451,839 (Case No. 6:20-cv-00487-ADA)

A. Term 1: “route” / “route-related information” (Claims 1, 3, 6, 8, and 11)

7 SunRace Roots Enterprise Co., Ltd. v. SRAM Corp., 336 F.3d 1298, 1303 (Fed. Cir. 2003) (citing Ecolab Inc. v. 

Paraclipse, Inc., 285 F.3d 1362, 1375 (Fed. Cir. 2002)). (Emphases added).

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 14 of 21
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WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

First, WSOU incorrectly argues that this term is definite. WSOU Reply Br., pp. 10-11. For 

instance, with respect to the term “route,” the ’839 patent fails to provide defining features 

regarding the term. And the plain and ordinary meaning of the term cannot be ascertained, as it is 

untethered by the claims and scope of the patent. See Defendants Opening Br., pp. 21-23. WSOU 

responds by stating that “route appears nearly two-hundred times in the ’839 patent.” WSOU Reply 

Br., p. 11. This is misleading. Terms like “route-related information,” “route information,” “route 

protocols,” “router[s],” “route tables,” “route protocol messages,” “route management apparatus,” 

“route maintenance means,” and “route table item” are used in the ’839 patent some two hundred

times, but the term “route[s]” is only recited in the specification when “creating routes,” ’839 

patent, Abstract, 1:51-55; 3:14-19, and that the using time is related to a route. Id., 5:13-18.8

WSOU’s hand-waving cannot make the term “route[s]” become somehow equivalent to these 

hundreds of other terms, both in the claim and in the specification. WSOU has itself cited precedent 

that different terms have different meanings. See, e.g., WSOU Opening Br., p. 13. Here, the term 

“routes” is distinct in its use in the claims as well as in the specification, and cannot simply be 

equated to “route information” or “route tables.”

Likewise, the term “route-related information” is indefinite because the claim and the 

specification merely refer to the “route-related information” as existing, but not what the “routerelated information” might be. Because the meaning is not ascertainable, a PHOSITA would be 

unable to determine the scope of the claims, and the claims are thus indefinite.

Second, WSOU’s argument relating to the antecedent basis of “said route” in claims 1 and

8 The term “route” is used in two other sections, but it is clear these section reference “marginal routers” and the term 

“route” appears to be a reference to these routers. Compare ’839 patent, 5:47-64; 6:37-54 with id., Figures 3a, 3b.

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6 is similarly deficient. WSOU Reply Br., p. 11. The term “said route” cannot have an antecedent 

basis of “route-related information” because the terms mean something different.9 WSOU fails to 

raise an argument that “route” should be defined as “route information,” because it is simply 

nonsensical to read the claims and assume that these different terms should have the same meaning. 

In claims 1 and 6, there are no limitations or other claim elements that provide a PHOSITA with 

any guidance as to what “route” is being referred to. A PHOSITA would also not be able to 

ascertain the meaning from the specification because the specification only recites creating a route. 

And, the prosecution history sheds no light on the issue. Without this information, it is impossible 

for a PHOSITA to ascertain the scope of the claims, and the claims are thus indefinite.

B. Term 2: “said predefined using time indicates[ing] a [the] using time of said 

route” (Claims 1 and 6)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning “Indefinite under 35 U.S.C. § 112(b).”

First, WSOU incorrectly characterizes ZTE’s arguments as one of inoperativeness, WSOU 

Reply Br., p. 11, but this is untrue. The scope of the claim is not ascertainable because a PHOSITA 

is not able to determine whether a predefined using time is defined beforehand, or “indicates a 

using time of said route,” as recited in the claims. As such, the claims are indefinite.

Second, WSOU looks to the specification to resolve this ambiguity, concluding that “using 

time can be predefined before it is used.” WSOU Reply Br., p. 12. WSOU does not address the 

issue that the claim recites that “said predefined using time indicates a using time of said route.” 

WSOU’s argument does not address what it means for the predefined using time to “indicate” a 

using time, only “a time that can be used.” The former language is not addressed by the 

specification because it does not appear anywhere in the specification. See generally, ’839 patent.

9 Pause Technology, LLC v. TiVo, Inc., 419 F.3d 1326, 1334 (Fed. Cir. 2005).

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Third, WSOU seeks for the court to read section 5:9-18 of the ’839 patent into claims 1 

and 6 to resolve any ambiguity. WSOU Reply Br., p. 12.10 But, WSOU does not suggest a

construction. And it would be improper because the Court cannot simply read in elements of an 

embodiment, even if the elements were known, to resolve the ambiguity of the claims.

Fourth, the specification language does contain differences from the claim language.

C. Term 3: “using time” (Claims 1, 6)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Claim 6: Indefinite for lack of antecedent basis under 35 

U.S.C. § 112(b)

ZTE stated in its Opening Br. that the antecedent basis issue may not be fixed in hindsight. 

WSOU’s attempt to differentiate “the” and “said” is pure hindsight and against well-acknowledged 

rules of patent law.11 ZTE’s argument in its Opening Br. explicitly states the relevant issue is that 

it is unclear what “using time” is referenced in view of the other claimed “predefined using time.”

Defendants Opening Br., pp 24-25. None of WSOU’s arguments address ZTE’s point.

IV. U.S. Patent No. 9,185,036 (Case No. 6:20-cv-00494-ADA)

A. Term 1: “data flow” (Claims 1, 6,-10, 12, 17-21, and 23-24)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b). 

The specification fails to provide a measure for data control, and WSOU fails to address 

this issue. Defendants Opening Br., pp. 25-26; see also WSOU Reply Br., pp. 13-14.

WSOU further erroneously relies on its dependent claims to resolve the indefiniteness 

issue. This is flawed for two reasons. First, the dependent claims recite additional limitations that 

10 WSOU (stating that “one of ordinary skill in the art would recognize, with reasonable certainty, that claim scope 

encompasses not only S12 of Figure 2, but also the only corresponding written description of S12 (e.g., at 5:9-18).”) 11 Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1356 (Fed. Cir. 2003) (citing a Circuit case that stated “it is 

a rule of law well established that the definite article “the” particularizes the subject which it precedes. It is a word of 

limitation as opposed to the indefinite or generalizing force of ‘a’ or ‘an.’”).

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are not linked to other claim elements, such as “data packets” in claims 7-9 and 18-20 and a new 

recitation of “a data flow” in claims 6 and 17. WSOU failed to address ZTE’s argument that a 

PHOSITA would be unable to measure or determine whether packets were relevant to the claims 

or not because of the lack of limitations of the claims. Defendants Opening Br., pp. 25-26. Second, 

independent claims may be invalid even if dependent claims are not.12 WSOU’s error is that it 

cannot incorporate portions of dependent claims at will to resolve ambiguities in the independent 

claim. See WSOU Reply Br., pp. 13-14. But, as discussed above, even if this error is committed, 

it would not resolve the indefiniteness issue here. Resorting to disclosure in dependent claims is 

exactly why a PHOSITA would be unable to ascertain the meaning of the claims, and, here, the 

dependent claims fail to resolve the uncertainty.

WSOU also argues that “a MAC address associated with a data flow” provides meaningful 

context. WSOU Reply Br., p. 14. It does not. This claim term provides no information as to 

whether the data flow is present at the MAC address, the data flow contains a message of the MAC 

address, the data flow is to or from the MAC address, whether a MAC address is several hops 

away, or any other combination of elements. The specification discusses different versions of these 

elements, see, e.g., 1:54-2:13; 2:34-41, but, it is impossible to determine the scope of the claims

without the elements tied to the claims. Accordingly, the specification thus fails to resolve the 

ambiguity in the claims. To the extent a source node and a destination node need to be read into 

the claims, WSOU Reply Br., p. 14, WSOU should have supplied an appropriate construction.

Without any of the apparently necessary limitations, the claims are ambiguous and indefinite.

B. Term 2: “congestion condition . . .” (Claims 1, 12, 23, and 24)

WSOU’s Proposed

Construction

Defendants’ Proposed Construction

12 Default Proof Credit Card System, Inc. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1303 (Fed. Cir. 2005).

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 18 of 21
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Plain and ordinary meaning “Indefinite under 35 U.S.C. § 112(b)”

First, WSOU’s argument regarding “congestion message” does not apply to the claimed 

“congestion condition.” WSOU points to the specification, arguing that the “congestion message” 

enables control, WSOU Reply Br., p. 15, but fails to identify any disclosure of the “congestion 

condition” enabling control. These claims terms are not the same and may not be used 

interchangeably. Pause Technology, 419 F.3d at 1334. How the “congestion condition” enables 

control, what it means for the “congestion condition” to enable control, or what measure may be 

used to determine whether control of “data flow in a manner tending to reduce the congestion 

condition” is occurring, is not present in the claims or the specification. To the extent WSOU 

proposes that portions of the ’036 patent should be read into the specification, WSOU does not 

explain how claim scope should be changed to incorporate the cited paragraphs of the 

specification. See WSOU Reply Br., p. 15. 

Second, WSOU’s argument regarding dependent claims are again incorrect. WSOU brings 

a theory that dependent claims may be read into independent claims to inform the scope of the 

independent claims. See WSOU Reply Br., p. 15. This is error, and independent claims may be 

invalid even if dependent claims are not. Default, 412 F.3d at 1303 (Fed. Cir. 2005). And, 

WSOU’s theory regarding the dependent claims is flawed because the dependent claims do not 

recite qualifications that would allow a PHOSITA to ascertain the scope of controlling “data flow 

in a manner tending to reduce the congestion condition.” Nothing in the limitations of claims 2-5 

and 13-16 would provide a PHOSITA a measure of whether a congestion condition is tending to 

be reduced or not. Additionally, the limitations and features of claims 2-5 and 13-16 and in the 

specification at 4:35-42, include limitations like links and queues that are not included in the 

independent claims and cannot simply be read in. 

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DATED: May 7, 2021 Respectfully submitted,

/s/Lionel M. Lavenue 

Lionel M. Lavenue 

Virginia Bar No. 49,005

lionel.lavenue@finnegan.com 

FINNEGAN, HENDERSON, FARABOW, 

GARRETT & DUNNER, LLP

1875 Explorer Street, Suite 800

Reston, VA 20190

Phone: (571) 203-2700

Fax: (202) 408-4400

ATTORNEY FOR DEFENDANTS

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 20 of 21
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s 

CM/ECF system on May 7, 2021.

/s/Lionel M. Lavenue 

 Lionel M. Lavenue

Case 6:20-cv-00487-ADA Document 77 Filed 05/07/21 Page 21 of 21