Case 6:20-cv-00461-ADA Document 138 Filed 04/19/22 Page 1 of 13
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TABLE OF CONTENTS 

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

MICROSOFT DOES NOT INFRINGE THE ’702 PATENT ............................................ 2

A. The ’702 Patent ....................................................................................................... 2

B. The Accused Network Policy Server ...................................................................... 2

C. There Is No Evidence that Network Policy Server Practices the “Informing” or 

“Informed” Limitations of the ’702 Patent. ............................................................ 3

MICROSOFT DOES NOT INFRINGE THE ’160 PATENT ............................................ 6

A. The ’160 Patent ....................................................................................................... 6

B. The Accused Feature: Azure Monitor’s Dynamic Thresholds ............................... 6

C. There Is no Evidence that Azure Monitor or Dynamic Thresholds Practices the 

“Determining a Trend” Limitation of the ’160 Patent. ........................................... 7

CONCLUSION ................................................................................................................... 8

 

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INTRODUCTION 

WSOU Investment, LLC (“WSOU”) has failed to adduce evidence that Microsoft 

Corporation (“Microsoft”) infringes U.S. Patent Nos. 7,106,702 and 7,366,160. 

The ’702 Patent. The ’702 Patent claims a way of implementing back-up capabilities for 

servers that perform Authentication, Authorization, and Accounting (AAA) functionality on a 

network. The patent describes a failover mechanism where, if an active AAA server is 

disconnected, a back-up AAA server is brought online, and the network (or specific entities on 

the network) is “informed” that this back-up has been activated. Microsoft’s accused Network 

Policy Server (NPS) does not meet numerous limitations of the asserted claims, including the 

requirement that other network entities (or the network itself) be “informed” that the back-up has 

been activated. The evidence shows that there is no mechanism for the accused NPS software to 

“inform” other network entities of the disconnection, activation, or indeed any other state of an 

NPS server. 

The ’160 Patent. The ’160 Patent describes a multi-step prediction method that involves 

“determining a trend” of a service indicator. WSOU relies on a single, specific source code 

function as practicing the “determining a trend” limitation of the asserted claims. But this source 

code function (and related files) are not used in “Dynamic Thresholds” the accused feature, or 

any feature. WSOU has no evidence at all that Azure Monitor performs “determining a trend.” 

Because WSOU has failed to advance evidence showing infringement of at least one 

element of each asserted claim, the Court should enter judgment of non-infringement in Case No. 

6:20-cv-454 (for the ’160 Patent) and Case No. 6:20-cv-461 (for the ’702 Patent). Celotex Corp. 

v. Catrett, 477 U.S. 317, 322 (1986) (summary judgement must be granted against a party who 

has the burden of proof at trial and “fails to make a showing sufficient to establish the existence 

of an element essential to that party's case.”). 

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MICROSOFT DOES NOT INFRINGE THE ’702 PATENT 

A. The ’702 Patent 

The ’702 Patent concerns devices that perform AAA functionality on a wireless network. 

As noted in the Background of the Invention, AAA-function capable devices are prior art. (’702 

Patent, 1:16-22.) AAA functionality is straightforward: authentication verifies a user’s identity; 

authorization determines if a user can access network resources; and accounting collects user 

data. (DeKok Op. Rept., ¶93.) 

The ’702 Patent claims a technique of adding redundancy to a AAA network via a simple 

idea: use “a communications network having a plurality of nodes which are AAA function 

capable.” (’702 Patent, Abstract.) If one of the active nodes is disconnected from the network, 

the ’702 Patent describes and claims steps for bringing an inactive (but AAA-function capable) 

node online. The patent requires “monitoring” the network for disconnected “active nodes,” 

“selecting” a new “active node” as a replacement, and “informing” the other AAA-function 

capable nodes (or the network as a whole) that a new node is now an “active node.” Relevant to 

this motion is the “informing” requirement, which is present in all of the asserted claims through 

independent claims 1 and 11.1

B. The Accused Network Policy Server 

WSOU accuses Microsoft’s Network Policy Server (NPS) of infringing the asserted 

claims of the ’702 Patent. Microsoft offers NPS as part of its Windows Server system 

(McClellan 702 Inf. Rept., ¶10), which implements AAA using a prior art standard called the 

“Remote Authentication Dial In User Service (RADIUS).” (Id., ¶12.) NPS can be deployed as a 

AAA-function capable server, where the server itself performs AAA (a RADIUS server), or as a 

1

 WSOU has asserted claims 1, 3, 4, 8, 10-12, and 16-17 of the ’702 Patent. 

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RADIUS proxy, where NPS routes AAA messages from RADIUS clients to RADIUS servers. 

(Id., ¶14.)2 

Dr. McClellan contends that Microsoft infringes the asserted claims of the ’702 Patent 

only when NPS is configured as a RADIUS server. (See, e.g., McClellan 702 Inf. Rept., ¶¶96, 

100-101, 105, 109-110, 113, 116.) Dr. McClellan opines that NPS, so configured, satisfies the 

“active node” limitation in all asserted claims. (See, e.g., id., ¶¶100-101 (“[W]henever NPS 

servers are setup as RADIUS servers, they become AAA functional. The claim language is 

satisfied, for example, by activating AAA functionality of the NPS nodes.”).) 

C. There Is No Evidence that Network Policy Server Practices the “Informing” 

or “Informed” Limitations of the ’702 Patent. 

Under WSOU’s theory, NPS servers are the accused “AAA functional nodes,” and the 

accused system purportedly satisfies the limitations of the asserted claims. Even assuming that 

such a configuration satisfies certain limitations of the claims, WSOU has failed to present 

evidence that the accused NPS software satisfies the “informing” limitation of Claim 1 or the 

“informed” limitation of claim 11, and has thus failed to adduce evidence showing infringement. 

Both asserted independent claims of the ’702 Patent require the claimed method or 

system to “inform” other entities that a new node is now an “active node.” Specifically, 

independent Claim 1 requires “informing the plurality of nodes that the node selected [in the step 

above] has its AAA functions activated” and independent Claim 11 requires that when “another 

of the plurality of nodes is selected to be an active node [] the network [is] informed thereof.” 

2

 A “RADIUS client” is a device (often a “network access server,” or “NAS”) that sends 

connection requests and accounting messages to a RADIUS server so that, for example, a user 

can connect to a network. A “RADIUS server” is a piece of software that implements the 

RADIUS protocol and performs AAA functionality. (See DeKok Op. Rept., ¶¶98-104; 

McClellan Inf. Rept., ¶91.) 

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There is no genuine dispute that NPS does not practice this “informing” step. As Mr. DeKok, 

Microsoft’s expert, explained in his report, NPS servers do not inform other RADIUS servers of 

anything, including whether another server “has its AAA functions activated.” (See, e.g., DeKok 

Rebuttal Rept., ¶¶175, 274-280, 339.) WSOU has advanced no evidence to the contrary. 

Indeed, with respect to Claim 11, Dr. McClellan fails to address the “informing” 

limitation at all. The section of his report directed to the broader limitation in which this 

requirement appears (McClellan 702 Inf. Rept., ¶¶142-151), contains no discussion of how “the 

network” is “inform[ed]” that a node has been selected to be an active node. Likewise, there is 

no such discussion in the infringement contentions that he incorporates by reference, nor in his 

discussion of the source code he cites in connection with this limitation. (See McClellan 702 Inf. 

Rept., Ex. 3, pp. 44-50; ¶151; Appendix.) Indeed, other than the recitation of the claim language 

itself, he does not use the word “informed” in his analysis of this claim limitation. In light of Dr. 

McClellan’s failure to address this limitation and Mr. DeKok’s analysis that the accused software 

does not satisfy this claim limitation (see, e.g., DeKok Rebuttal Rept., ¶¶339, 175, 275, 277), this 

Court should grant summary judgment of non-infringement of Claim 11 and its dependent 

asserted claims (12, 16, and 17). 

With respect to the “informing” limitation of claim 1, Dr. McClellan opines that this 

limitation is satisfied when RADIUS clients are informed that a server has become unavailable: 

Microsoft’s documentation shows that one of the NPS may be used 

as the primary RADIUS server while another is used as a backup. 

Each RADIUS client may configure on both NPS. If the primary 

NPS becomes unavailable, RADIUS clients are informed so that 

they may then send Access-Request messages to the alternate NPS. 

This results in “informing the plurality of nodes that the node 

selected in step (d) has its AAA functions activated),” as recited in 

claim 1. 

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(McClellan 702 Inf. Rept., ¶116.) This allegation is facially insufficient. Even assuming that Dr. 

McClellan is correct, the “informing” identified in his report is that the primary NPS has become 

unavailable, not that another node has had its RADIUS functionality activated. 

 And in any event, “informing” RADIUS clients is insufficient to satisfy this limitation 

because clients are not “AAA function capable” and thus cannot be the claimed “plurality of 

nodes” that must be informed. See ’702 patent, cl. 1. Indeed, Dr. McClellan himself opined that 

clients are not part of the claimed AAA functionality. (McClellan 702 Valid. Rept., ¶89) 

(“client-side failover processes [of RADIUS are] part of the client implementation, and not part 

of the ‘AAA functionality’ of the network as disclosed in the ’702 patent”); see also McClellan 

Dep., 63:17-64:7 (refusing to state if a RADIUS client is AAA function capable).) 

Moreover, Dr. McClellan’s opinion is also deficient because the claimed “plurality of 

nodes” that must be notified comprise RADIUS servers. Claim 1 requires both “selecting two of 

the plurality of nodes to be active nodes” and “activating the AAA functions of the active 

nodes.” Dr. McClellan opines that these two active nodes are NPS servers. (McClellan 702 Inf. 

Rept., ¶¶94-103) Therefore one of these servers must be “informed” when the other server is 

disconnected in order to satisfy this limitation. But Dr. McClellan’s infringement analysis for 

this limitation is based entirely on “informing” clients; he offers no evidence that NPS servers

are ever informed that other servers are unavailable or activated. 

Finally, Dr. McClellan’s assertion that clients are “informed” is nothing more than ipse 

dixit. At his deposition Dr. McClellan could identify no message purportedly sent (or 

mechanism for sending such a message) to these clients. (McClellan Dep., 50:22-51:13 

(confirming that clients do not receive any message stating that a server is unavailable).) 

Instead, Dr. McClellan testified that a RADIUS proxy was capable of informing itself of which 

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servers were active. (See id., 52:6-54:14.) And Dr. McClellan could not identify any mechanism 

by which that proxy could send this server group list to another client or server. (Id., 54:15-

56:19.) As Mr. DeKok confirmed, there is no such mechanism by which NPS “informs” any 

other entity regarding the status of an NPS server. (See, e.g., DeKok Rebuttal Rept., ¶¶274-280, 

175). Summary judgment of non-infringement on claim 1 and its dependent asserted claims 

(claims 3, 4, 8, and 10) is therefore appropriate. 

MICROSOFT DOES NOT INFRINGE THE ’160 PATENT 

A. The ’160 Patent 

The ’160 Patent—titled Method of Determining Service Trends—explains that in the 

prior art there were “no tools for forecasting accurately the failure of a network service.” (’160 

Patent, Title, 1:24-25.) The patent proposes addressing this issue via a multi-step method. The 

steps relevant here are—(1) “determining a trend of the indicator as a function of said 

determined indicator values” and (2) “determining as a function of the trend of the indicator a 

time of the service indicator crossing a defined threshold.” (Id., Claim 1.) 

B. The Accused Feature: Azure Monitor’s Dynamic Thresholds 

WSOU accuses Azure Monitor’s Dynamic Thresholds of infringing the asserted claims.3 

Azure Monitor is software that allows users of Microsoft’s cloud platform, Azure, to monitor 

their resources running on Azure. Azure resources include virtual versions of physical devices, 

such as “virtual” servers that can be deployed as needed. (Coates Rebuttal Rept., ¶31.) 

Azure Monitor collects data called “Metrics” about resources running on Azure. 

(McClellan 160 Inf. Rept., ¶¶101-102). It also allows users to set alerts for Metrics that fire 

3 See, e.g., McClellan 160 Inf. Rept. Ex. 3, pp. 22-23, 25-26 (charts “incorporated by reference” 

identifying source code for Dynamic Thresholds and with text corresponding to ¶¶118, 125-27 of 

the report ); Ex. 4 (document discussing Dynamic Thresholds cited in ¶¶123-124 of the report). 

Case 6:20-cv-00461-ADA Document 138 Filed 04/19/22 Page 9 of 13
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based on a Metric value. (Id., ¶122). Thresholds can be static or “dynamic.” Dynamic 

Thresholds, according to Dr. McClellan, adapt to a Metric’s behavior over time. (Id., ¶123 & 

Ex. 4). Dynamic Thresholds-based alerts fire when there are “deviations from its pattern” or 

“deviation[s] from certain thresholds.” (Id., ¶¶122-123). Dr. McClellan depicts a Dynamic 

Threshold that varies in a regular pattern in his Report. (Id., ¶124 & Ex. 4). 

C. There Is no Evidence that Azure Monitor or Dynamic Thresholds Practices 

the “Determining a Trend” Limitation of the ’160 Patent. 

Dr. McClellan opines that Azure Monitor practices the “determining a trend” limitation 

in Claim 1—specifically, he opines that it “determin[es] a trend” when it calls 

 (McClellan 160 Inf. Rept., ¶118, Ex. 3, p. 22.) Dr. McClellan further opines 

 generally relate to “determining a trend.”4

 (Id. ¶119.) 

There is no evidence that 

show that Microsoft practices the “determining a trend” limitation. This is because there is no 

genuine dispute that are not used in Dynamic 

Thresholds (or otherwise in Azure Monitor). 

Dr. Mark Coates, Microsoft’s technical expert, reviewed 

 accused in Dr. McClellan’s report, above, as meeting the “determining a trend” 

limitation. As Dr. Coates states in his Declaration, 

 (Coates Decl., ¶¶4-7.) Dr. Coates determined that were not “deployed, 

4

 The two other files are 

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compiled, or otherwise used in Azure Monitor.” (Id., ¶9.) First, he found that in the source code 

repository containing 

 (Id., ¶7.) Second, 

Dr. Coates found that Dr. McClellan did not “provide[] any examples of the being 

called by source code he identifies as practicing other limitations in the claim.” (Id.) Third, Dr. 

Coates found “the remaining code” in the source code repository 

 (Id.) Fourth, Dr. Coates found 

identified by Dr. McClellan as practicing this 

limitation. (Id., ¶8.) Finally, Dr. Coates confirmed with Rachel Lemberg that none of the 

was used by Azure Monitor. (Id., ¶9.) Ms. Lemberg was designated as 

Microsoft’s Rule 30(b)(6) witness on technical issues related to Dynamic Thresholds. 

Because identified by Dr. McClellan as performing the 

“determining a trend” limitation, as well as 

identified in Dr. McClellan’s report, are not used in Azure Monitor, WSOU has provided no 

evidence that Microsoft practices the “determining a trend” limitation. Indeed, Dr. McClellan, 

when asked at his deposition, could not identify 

 that allegedly performed the “determining a trend” 

limitation. (McClellan Dep., 175:12-176:4.) 

CONCLUSION 

Because WSOU has no evidence that Microsoft practices the “informing” limitation in 

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

claim of the ’160 Patent, it cannot show infringement of those claims. This Court should enter 

judgment of non-infringement for Microsoft. 

Case 6:20-cv-00461-ADA Document 138 Filed 04/19/22 Page 11 of 13
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DATED: April 12, 2022 Respectfully submitted, 

 

/s/ Richard A. Cederoth (by permission) 

Melissa R. Smith, Bar No. 24001351 

melissa@gillamsmithlaw.com 

James “Travis” Underwood, Bar No. 

24102587 

travis@gillamsmithlaw.com

GILLAM & SMITH, LLP 

303 South Washington Avenue 

Marshall, Texas 75670 

Tel: (903) 934-8450 

Fax: (903) 934-9257 

Michael J. Bettinger

mbettinger@sidley.com 

Irene Yang 

irene.yang@sidley.com 

Brooke S. Boll 

brooke.boll@sidley.com 

SIDLEY AUSTIN LLP 

555 California Street, Suite 2000 

San Francisco, CA 94104 

Tel: (415) 772-1200 

Fax: (415) 772-7400 

Richard A. Cederoth 

rcederoth@sidley.com 

John W. McBride 

jwmcbride@sidley.com 

Richard M. Chen 

rchen@sidley.com 

Kevin Robert Oliver

kevin.oliver@sidley.com 

SIDLEY AUSTIN LLP 

1 South Dearborn St. 

Chicago, IL 60603 

Tel: (312) 853-7000 

Fax: (312) 853-7036 

ATTORNEYS FOR MICROSOFT 

CORPORATION 

Case 6:20-cv-00461-ADA Document 138 Filed 04/19/22 Page 12 of 13
CERTIFICATE OF SERVICE

I, Richard M. Chen, certify that on April 12, 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. 

DATED: April 12, 2022 /s/ Richard M. Chen

Richard M. Chen

rchen@sidley.com

SIDLEY AUSTIN LLP

1 South Dearborn St.

Chicago, IL 60603

Tel: (312) 853-7000 

Fax: (312) 853-7036 

ATTORNEY FOR MICROSOFT 

CORPORATION 

Case 6:20-cv-00461-ADA Document 138 Filed 04/19/22 Page 13 of 13