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.

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§

CIVIL ACTION 6:20-cv-00456-ADA

CIVIL ACTION 6:20-cv-00458-ADA

PLAINTIFFS’ OPENING CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 1 of 40
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TABLE OF CONTENTS

II. Legal Standards....................................................................................................................1

A. Claim Construction Generally .................................................................................1

B. Means-Plus-Function Claim Construction Analysis................................................2

C. Indefiniteness...........................................................................................................2

III. Terms of U.S. Patent No. 7,388,868 (Case No. 6:20-cv-00458-ADA)...............................3

A. Agreed Terms of the ’868 Patent.............................................................................3

1. “emergency call muter” ...............................................................................3

2. “[origination / originating] station” .............................................................3

B. Disputed Terms of the ’868 Patent ..........................................................................4

3. “an emergency call router” ..........................................................................4

4. “access gateway” .........................................................................................5

5. “target gateway”...........................................................................................7

6. “selectably operable” and “selectably routing” ...........................................9

7. “... determining whether the call of the selected call-type shall be 

completable by way of the normal-operation communication link and for 

rerouting a call request to the local-network alternate station upon 

determination that the call completion by way of the normal-operation 

communication link”..................................................................................10

IV. U.S. Patent No. 7,676,550 ( Case No. 6:20-cv-00456) Disputed Claim Terms...............11

A. Terms with the word “means” ...............................................................................11

8. means for defining access rules for each of said presence contributors, 

said access rules associated with each of said presence contributors 

defining respective rights and privileges of said presence contributors to 

access said presence information of said presentity after said presence 

contributors have provided said presence information to said presence 

server..........................................................................................................13

9. means for authenticating one of said presence contributors to determine 

said access rules associated with said one of said presence contributors..15

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 2 of 40
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10. means for enabling access to said presence information of said presentity 

by said one of said presence contributors based on said access rules 

associated with said one of said presence contributors..............................16

11. means for enabling access further includes means for filtering said 

presence information of said presentity based on said access rules of said 

one of said presence contributors to produce filtered presence information 

and means for providing said filtered presence information to said one of 

said presence contributors..........................................................................18

12. means for enabling access further includes means for enabling said one of 

said presence contributors to update said presence information of said 

presentity based on said access rules of said one of said presence 

contributors................................................................................................21

13. means for enabling access further includes means for enabling said one of 

said presence contributors to define preference information associated 

with said presence information of said presentity based on said access 

rules of said one of said presence contributors..........................................23

14. means for authenticating further includes means for assigning 

authentication credentials to each of said presence contributors and 

means for receiving said authentication credentials of said one of said 

presence contributors to authenticate said one of said presence 

contributors................................................................................................25

15. means for enabling further includes means for enabling access to said 

presence information of said presentity by multiple ones of said presence 

contributors simultaneously based on said respective access rules 

associated with said multiple ones of said presence contributors..............29

16. means for enabling further includes means for providing hierarchical 

access by said presence contributors to said presence information of said 

presentity....................................................................................................31

B. Other disputed terms (without the word “means”) ................................................33

17. presentity / presentities ..............................................................................33

18. presence contributors.................................................................................34

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 3 of 40
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TABLE OF AUTHORITIES

Cases

Acromed Corp. v. Sofamor Danek Group,

253 F.3d 1371 (Fed. Cir. 2001).......................................................................................... passim

Azure Networks, LLC v. CSR PLC,

771 F.3d 1336 (Fed. Cir. 2014)................................................................................................... 1

CloudofChange, LLC v. NCR Corp.,

No. 6-19-CV-00513-ADA, 2020 WL 4004810 (W.D. Tex. July 15, 2020)........................... 1, 2

Comark Commc’ns, Inc. v. Harris Corp.,

156 F.3d 1182 (Fed. Cir. 1998)................................................................................................... 1

Dayco Prods., Inc. v. Total Containment, Inc.,

258 F.3d 1317 (Fed. Cir. 2001)........................................................................................... 6, 7, 8

Digital Retail Apps, Inc. v. HE-B, LP,

Case No. 6:19-cv-00167-ADA, 2020 WL 376664 (W.D. Tex. Jan. 23, 2020) .......................... 2

e-LYNXX Corp. v. Innerworkings, Inc.,

No. 1:10-CV-2535, 2012 WL 4484921 (M.D. Pa. Sept. 27, 2012).......................................... 29

Finjan, Inc. v. Sophos, Inc.,

No. 14-CV-01197-WHO, 2015 WL 890621 (N.D. Cal. Mar. 2, 2015).................................... 28

Freeny v. Murphy USA Inc.,

No. 2:13-CV-791-RSP, 2015 WL 294102 (E.D. Tex. Jan. 21, 2015)...................................... 28

In re Katz Interactive Call Processing Patent Litig.,

639 F.3d 1303 (Fed. Cir. 2011)........................................................................................... 25, 28

Intelligent Automation Design, LLC v. Zimmer Biomet CMF & Thoracic, LLC,

2019-1100 (Fed. Cir. Jan. 30, 2020)................................................................................... 12, 15

JVW Enterprises, Inc. v. Interact Accessories, Inc.,

424 F.3d 1324 (Fed. Cir. 2005)........................................................................................... 13, 26

K-2 Corp. v. Salomon S.A.,

191 F.3d 1356 (Fed. Cir. 1999)........................................................................................... 6, 7, 8

Micro Chem., Inc. v. Great Plains Chem. Co.,

194 F.3d 1250 (Fed. Cir. 1999).......................................................................................... passim

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 4 of 40
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Nautilus, Inc. v. Biosig Instruments, Inc.,

572 U.S. 898 (2014).............................................................................................................. 2, 11

Nevro Corp. v. Boston Scientific Corporation,

955 F.3d 35 (Fed. Cir. 2020).............................................................................................. passim

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)............................................................................................... 1, 6

Power Mosfet Techs., L.L.C. v. Siemens AG,

378 F.3d 1396 (Fed. Cir. 2004)................................................................................................... 8

Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,

844 F.3d 1370 (Fed. Cir. 2017)................................................................................................... 2

SRI Intern. v. Matsushita Elec. Corp. of America,

775 F.2d 1107 (Fed. Cir. 1985)................................................................................................... 8

TecSec, Inc. v. Int'l Bus. Machs. Corp.,

731 F.3d 1336 (Fed. Cir. 2013)................................................................................................. 11

TriMed, Inc. v. Stryker Corp.,

514 F.3d 1256 (Fed. Cir. 2008)................................................................................................. 11

VW Enterprises, Inc. v. Interact Accessories, Inc.,

424 F.3d 1324 (Fed. Cir. 2005)................................................................................................. 19

Statutes

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

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 5 of 40
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Plaintiff WSOU Investments, LLC d/b/a Brazos License and Development (“WSOU”)

respectfully submits this claim construction brief in support of its proposed constructions.

II. Legal Standards

A. Claim Construction Generally

The general rule is that claim terms are generally given their plain-and-ordinary meaning. 

Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v.

CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated on other grounds by 135 S. Ct. 1846, 

1846 (2015) (“There is a heavy presumption that claim terms carry their accustomed meaning in 

the relevant community at the relevant time.”). The plain and ordinary meaning of a term is the 

“meaning that the term would have to a person of ordinary skill in the art in question at the time 

of the invention.” Philips,415 F.3d at 1313. “‘Although the specification may aid the court in 

interpreting the meaning of disputed claim language, particular embodiments and examples 

appearing in the specification will not generally be read into the claims.’” Comark Commc’ns, Inc. 

v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced MicroDevices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)). Although extrinsic evidence can also be 

useful, it is ‘“less significant than the intrinsic record in determining the legally operative meaning 

of claim language.’” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 

388 F.3d 858, 862 (Fed. Cir. 2004)). 

This Court recently explained that “[t]he ‘only two exceptions to [the] general rule’ that 

claim terms are construed according to their plain and ordinary meaning are when the patentee 

(1) acts as his/her own lexicographer or (2) disavows the full scope of the claim term either in the 

specification or during prosecution.” CloudofChange, LLC v. NCR Corp., No. 6-19-CV-00513-

ADA, 2020 WL 4004810, at *2 (W.D. Tex. July 15, 2020) (quoting Thorner v. Sony Computer 

Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as his/her own lexicographer, the 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 6 of 40
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patentee must ‘clearly set forth a definition of the disputed claim term,’ and ‘clearly express an 

intent to define the term.’” Id. (quoting Thorner, 669 F.3d at 1365). And “[t]o disavow the full 

scope of a claim term, the patentee’s statements in the specification or prosecution history must 

represent ‘a clear disavowal of claim scope.’” Id. (quoting Thorner, 669 F.3d at at 1366). 

“Accordingly, when ‘an applicant’s statements are amenable to multiple reasonable 

interpretations, they cannot be deemed clear and unmistakable.’” Id. (quoting 3MInnovative 

Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013)).

B. Means-Plus-Function Claim Construction Analysis

A rebuttable presumption that § 112 ¶ 6 applies when the claim language includes “means” 

in its terms and does not apply in the absence of that term. Digital Retail Apps, Inc. v. HE-B, LP, 

Case No. 6:19-cv-00167-ADA, 2020 WL 376664, at *2 (W.D. Tex. Jan. 23, 2020) (citing 35 

U.S.C. § 112 H 6; Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347-49 (Fed. Cir. 2015) (en 

banc)). “The presumption stands or falls according to whether one of ordinary skill in the art would 

understand the claim with the functional language, in the context of the entire specification, to 

denote sufficiently definite structure or acts for performing the function.” Id. at *2.

C. Indefiniteness

The Patent Act requires claims to particularly point out and distinctly claim the subject 

matter regarded as the inventions. 35 U.S.C. § 112, ¶ 2. To satisfy this requirement, the claim must 

be read in light of the intrinsic evidence to determine whether it informs one of skill in the art at 

the time of the invention “about the scope of the invention with reasonable certainty.” Nautilus, 

Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910-11 (2014). To establish that a claim is indefinite, 

a patent challenger must prove indefiniteness by clear and convincing evidence. Sonix Tech. Co. 

v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 7 of 40
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III. Terms of U.S. Patent No. 7,388,868 (Case No. 6:20-cv-00458-ADA)

A. Agreed Terms of the ’868 Patent

1. “emergency call muter”

The parties agree that the term “emergency call muter” (recited only in dependent claim 

12) should be construed here as “emergency call router” to correct a clerical error. This error 

appears to have been introduced by a failure to properly convert a document to text form, as a 

document submitted during prosecution reveals that the term as originally filed recited “emergency 

call router” (as emphasized by the red annotation to the screenshot below).

Application Serial No. 10/321,230 (which issued as the ’868 patent), Remarks dated Nov. 2, 2007 

to a Non-Final Office Action dated Dec. 11, 2006 (red annotation highlighting added). 

2. “[origination / originating] station”

WSOU’s Proposed Construction Defendant’s Proposed Construction

“the origination station” (recited in independent 

claims 1 and 18) makes antecedent reference to 

the term “an originating station” introduced in 

the preamble 

Plain and ordinary meaning

While it is Microsoft’s position that the terms “[origination / originating] station” require 

no construction, and in principle WSOU generally agrees, out of an abundance of caution, WSOU 

submits this term only for the Court to take judicial notice that the term “the origination station” 

(recited in independent claims 1 and 18) makes antecedent reference to the term “an originating 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 8 of 40
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station” introduced in respective claim preambles. This should be considered the plain and 

ordinary meaning, which is what Microsoft proposes.

B. Disputed Terms of the ’868 Patent

3. “an emergency call router”

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning back-up call router that is operable only when 

the communication link fails

The term “emergency call router” (recited in independent claims 1 and 18) requires no 

construction because “router” is a term of art and the couplet “emergency call” qualifies the 

“router” term using commonplace words. 

Microsoft errs in using claim construction as a pretense to add limitations that depart from 

what is recited. Specifically, Microsoft seeks to construe “emergency call router” to mean “backup call router that is operable only when the communication link fails.” Contrary to what 

Microsoft suggests by its erroneous construction, none of the claims of the ’868 patent restricts the 

“emergency call router” in terms of being only operable when the communication link fails. 

Rather, the surrounding claim language defines the “emergency call router” term, in part, by 

reciting what it must be “operable” to do (claim 1),1 or by reciting steps involving its operation 

(claim 18),2 without excluding the possibility that the claimed “emergency call router” may also 

1 Independent claim 1 recites, for example, “said emergency call router selectably operable 

responsive to failure of the normal-operation communication link for routing the call of the 

first selected call-type, thereby to facilitate call completion of the first selected call-type 

originated by the origination station.” (’868 patent, claim 1, 10:18-23, emphasis added.) 

2 Independent claim 18 is a method claim reciting a process involving the “emergency call router” 

in at least the following steps: (1) “selectably routing a call request of the selected call-type by 

way of an emergency call router, thereby to facilitate call-completion of the selected call-type 

between the origination station and the terminating station”; and (2) “connecting the 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 9 of 40
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have unrecited operability. It would be improper to narrowly redefine the “emergency call router” 

in terms of “operable only” language that departs from what is recited.

Microsoft’s impermissible redraft also cannot withstand scrutiny in view of claim language 

recited in dependent claims. Dependent claim 7, for example, recites “said emergency call router 

further comprises a call priority determiner operable at least responsive to failure of the normaloperation communication link ....” (’868 patent, claim 7, 10:56-60, emphasis added.) Here, the 

recitation “... operable at least responsive to failure of the normal-operation communication link” 

refutes Microsoft’s interpretation that the “emergency call router” is necessarily only operable 

when the communication link fails. 

4. “access gateway”

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning gateway coupled to the packet data network 

for communication with a softswitch

The words “access” and “gateway” (as recited in independent claims 1 and 18) require no 

construction. The term “gateway” in the recited context is a term of art and the “access” qualifier 

is readily understood in light of the surrounding claim language and the corresponding written 

description. Furthermore, the claims repeatedly recite an “access gateway” element in contexts 

expressly interrelating this element with others—e.g., “an emergency call router at least coupled 

to the access gateway” (claim 1); “communication network further is coupled to at least a first 

access gateway and wherein said emergency call router is embodied at the first access gateway” 

(claim 2); “a local-network alternate station coupled to an access gateway” (claim 10); etc. Under

these circumstances, there is no need to redraft the word choice of the patentee.

emergency call router ....” (’868 patent, claim 1, 12:26-31, emphasis added.) 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 10 of 40
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Microsoft errs in interpreting “access gateway” to mean “gateway coupled to the packet 

data network for communication with a softswitch.” While Microsoft uses “gateway” in its 

construction, it is unclear what portion of the remainder of its construction, if any, purportedly 

defines the “access” qualifier. It would appear Microsoft, instead, has abandoned the “access” 

qualifier altogether in favor of impermissibly addition extraneous limitations of its choosing. 

The claim language itself refutes Microsoft’s impermissibly rewrite. For example, 

dependent claims 2, 3, 4, 6, and 7 each recite an “access gateway” term in the context of “the 

communication network . . . coupled to at least a first access gateway”. This repeated claim 

language confirms that the claims makes such a coupling explicit when it is required. The doctrine 

of claim differentiation proscribes incorporating into an independent claim a limitation (such as a 

required coupling between elements) that is introduced in a dependent claim, as Microsoft 

erroneously proposes here. Phillips, 415 F.3d at 1315 (“The presence of a dependent claim that

adds a particular limitation gives rise to a presumption that the limitation in question is not present 

in the independent claim.”) (citation omitted).

Microsoft also errs in attempting to add the requirement that the recited “communication 

network” must be a “packet data network.” See Dayco Prods., Inc. v. Total Containment, Inc., 

258 F.3d 1317, 1327 (Fed. Cir. 2001) (proscribing adding limitations neither required by claim 

terms nor unambiguously required by either the specification or the prosecution history of a 

patent); see also K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1362-63 (Fed. Cir. 1999). The word 

“packet” does not appear in the claims; and none of the claims restrict the “communication 

network” to only a “packet data network.” Indeed, Microsoft’s construction unnecessarily injects 

ambiguity by its attempt to introduce the requirement “the packet data network” when there is no 

antecedent basis for a network expressly defined as being exclusively being packet based. 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 11 of 40
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Microsoft compounds its error by newly seeking to add a “softswitch” element, which is 

not recited in any of the claims of the ’868 patent. Id. Even worse, Microsoft attempts to add this 

unrecited element in the context of “gateway coupled to the packet data network for 

communication with a softswitch”. It is unclear as to whether the clause “for communication with 

a softwswitch” is intended to modify the “gateway” portion of Microsoft’s construction or, instead, 

the “packet data network” portion (or both). However, the Court need not resolve such ambiguity 

(appearing only in Microsoft’s construction) because it concerns additional limitations that are 

neither required by claim terms nor unambiguously required by either the specification or the 

prosecution history. See Dayco, 258 F.3d at 1327; K-2 Corp., 191 F.3d at 1362-63.

5. “target gateway”

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning gateway coupled to the emergency call router 

and separate from the access gateway

The words “target” and “gateway” (as recited in independent claims and 18) require no 

construction given the context in which they are recited. The term “gateway” in this context is a 

term of art and the “target” qualifier is readily understood in light of the surrounding claim 

language and the corresponding written description. 

Microsoft errs in seeking to construe every instance of “target gateway” to require a 

“gateway coupled to the emergency call router and separate from the access gateway.” While 

Microsoft uses “gateway” in its construction, it is unclear what portion of the remainder of its 

construction, if any, purportedly defines the “target” qualifier. It would appear Microsoft, instead, 

has abandoned the “target” qualifier altogether in favor of its own claim redrafting. In its 

impermissible redraft, Microsoft does not seek to construe “target gateway” in terms of what it is, 

but rather only in terms of extraneous limitations involving other elements. 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 12 of 40
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Because claim 1 recites “a target gateway coupled to the emergency call router”, 

Microsoft’s construction for “target gateway” should be rejected as rendering certain claim 

language superfluous. Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410 (Fed. 

Cir. 2004) (“interpretations that render some portion of the claim language superfluous are 

disfavored.”). It is also significant that independent claim 18 does not include the same explicit 

requirement of “a target gateway coupled to the emergency call router[.]” Rather, claim 18 

introduces the target gateway term in the following distinct context: “connecting the emergency 

call router, as a preliminary operation, between at least a first access gateway and a target gateway 

of the communication system[.]” It would be improper to import—literally verbatim—a limitation 

from claim 1 into claim 18. SRI Intern. v. Matsushita Elec. Corp. of America, 775 F.2d 1107, 1122 

(Fed. Cir. 1985) (en banc) (“It is settled law that when a patent claim does not contain a certain 

limitation and another claim does, that limitation cannot be read into the former claim in 

determining either validity or infringement.”).

Microsoft compounds its error by proposing to add the new limitation that the “target 

gateway” must be “... separate from the access gateway.” Microsoft’s extraneous “separate from” 

requirement should be rejected is neither required by claim terms nor unambiguously required by 

either the specification or the prosecution history. See Dayco, 258 F.3d at 1327; K-2 Corp., 191 

F.3d at 1362-63. Moreover, certain dependent claims confirm that there is not necessarily physical 

separation between elements introduced in claim 1.3 For example, claim 2 recites, “said 

emergency call router is embodied at the first access gateway” (10:30-33); and claim 3 recites 

“said detector is embodied at the access gateway” (10:34-37). 

3 Unlike claim 1, independent claim 18 has no claims dependent therefrom.

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6. “selectably operable” and “selectably routing”

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning deciding whether to permit a call to be routed 

based on call-type or call priority

The couplets “selectably operable” and “selectable routing” (as recited in independent 

claims 1 and 18, respectively) require no construction here. Microsoft errs in proposing the same 

construction for every instance in which either “selectably operable” or “selectably routing” is 

recited, notwithstanding the distinct word choice (i.e., “operable” vs. “routing”) and the differing 

surrounding contexts. According to Microsoft, regardless of the distinct word choice and contexts, 

any recitation of either “selectably operable” or “selectably routing” must require “deciding 

whether to permit a call to be routed based on call-type or call priority.” To be clear, Microsoft 

does not attempt to define the words “selectably,” or “operable,” or “routing.” Rather, Microsoft 

impermissibly seeks to rewrite the claim language appearing after those terms are recited. 

However, claim construction is not an exercise at redrafting claim language to suit a party’s 

preference. 

There is no need to interpret “selectably operable” in terms of a contrived and untethered 

“deciding ...” as Microsoft proposes. This is at least because claim 1 already makes explicit 

(1) what “selectively operable” pertains to and (2) what “said emergency call router determines ... 

prior to said operation of routing[.]” Specifically, claim 1 recites the term “selectably operable” 

in the following context: “said emergency call router selectably operable responsive to failure of 

the normal-operation communication link for routing the call of the first selected call-type, thereby 

to facilitate call completion of the first selected call-type originated by the origination station[.]” 

Claim 1 further recites, “said emergency call router determines whether the call request is for a 

call of the first selected call-type prior to said operation of routing the call of the first selected callCase 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 14 of 40
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type.” Microsoft may prefer its redrafting of claim language, presumably to advance a noninfringement or invalidity position, but that is not the purpose of claim construction.

For analogous reasons, Microsoft’s construction cannot withstand scrutiny in view of claim 

18. Claim 18 recites “selectively routing” in the following context: “said emergency call router is 

further selectably operable responsive to failure of the normal-operation communication link for 

routing a call request to the local-network station.” Claim 18 further recites, “determining whether 

the call request is for a call of the selected call-type prior to said operation of selectably routing.” 

Here again, there is no need to interpret “selectably routing” in terms of a contrived and untethered 

“deciding ....” where claim 18 already makes explicit (1) what “selectively routing” pertains to 

and (2) what must be determined “prior to said operation of selectably routing.” 

7. “... determining whether the call of the selected call-type shall be 

completable by way of the normal-operation communication link and 

for rerouting a call request to the local-network alternate station upon 

determination that the call completion by way of the normal-operation 

communication link”

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning; not indefinite. Indefinite

Microsoft purports in its Invalidity Contentions to challenge the definiteness of dependent 

claim 12 on the basis that it “appears to be missing words.” Microsoft’s Invalidity Contentions 

dated Nov. 6, 2020 (“458-MIC”), at 30-31. Specifically, Microsoft alleges that claim 12 is 

“incomplete as [t]o the underlined portion” as follows: “[t]he apparatus of claim 1 wherein the 

communication system further comprises a local-network alternate station, wherein said 

emergency call muter [router] is further for determining whether the call of the selected call-type 

shall be completable by way of the normal-operation communication link and for rerouting a call 

request to the local-network alternate station upon determination that the call completion by way 

of the normal-operation communication link[.]” Id. (underlining original).

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 15 of 40
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The claim langue in question “inform[s] those skilled in the art about the scope of the 

invention with reasonable certainty.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910, 

134 S. Ct. 2120, 2129 (2014). A person of ordinary skill in the art would recognize what is meant 

by “call completion” as that phrase is repeatedly used throughout the ’888 patent. A plain reading 

of claim 12 reveals (in pertinent part) that determination of a “call completion” event is a condition 

upon which “a call request to the local-network alternate station” is rerouted by way of the normaloperation communication link. This plain reading of the claim language would remain unchanged 

if, for example, the word “that” had been replaced with the word “of” in the recitation “... upon 

determination [of] the call completion by way of the normal-operation communication link[.]” No 

words are missing from claim 12. The words that are recited need only be properly understood. 

Microsoft failed to disclose in its Invalidity Contentions clear and convincing evidence sufficient 

to rebut the presumption of definiteness of claim 12. 

IV. U.S. Patent No. 7,676,550 ( Case No. 6:20-cv-00456) Disputed Claim Terms 

A. Terms with the word “means”

For each of the disputed terms including the word “means”, the parties dispute whether the 

rebuttable presumption that § 112 ¶ 6 applies has been overcome. For each “means” term identified 

by Defendant, the corresponding structure is recited in the preamble of claim 1 itself, and thus the 

rebuttable presumption is overcome, specifically the recited structure within the claims themselves

is: multiple access presence agent with presence server. ’550 patent, 8:30-31. TriMed, Inc. v. 

Stryker Corp., 514 F.3d 1256, (Fed. Cir. 2008) (“Sufficient structure exists when the claim 

language specifies the exact structure that performs the functions in question without need to resort 

to other portions of the specification or extrinsic evidence for an adequate understanding of the 

structure.”); TecSec, Inc. v. Int'l Bus. Machs. Corp., 731 F.3d 1336, 1347 (Fed. Cir. 2013) (To 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 16 of 40
12

determine whether a claim recites sufficient structure, “it is sufficient if the claim term is used in 

common parlance or by persons of skill in the pertinent art to designate structure, even if the term 

covers a broad class of structures and even if the term identifies the structures by their function.”). 

And in fact, while almost all of Defendant’s proposed structures for these terms improperly seeks 

to include more structure than required, in each case Defendant also identifies a [multiple access] 

presence agent and presence server, which is recited in the claim language itself.

Regardless, even if these claim terms are subject to 112 ¶ 6, Defendant’s proposed 

constructions should be rejected at least because: (i) Defendant misidentifies the alleged meansplus-function term; (ii) Defendant misidentifies the recited function; and (iii) Defendant 

improperly seeks to include more structure than is required. Finally, Defendant also proposes each 

of its proposed terms are indefinite for failure to disclose an algorithm. Defendant is wrong for at 

least two reasons. First, Defendant is wrong because neither the claims or Defendant’s own 

(improper) proposed structures recite a general-purpose computer or processor. See Nevro Corp. 

v. Boston Scientific Corporation, 955 F.3d 35, 42-43 (Fed. Cir. 2020) (no requirement for a specific 

algorithm when the identified structure is not a general-purpose computer or processor). And 

second, while WSOU disagrees that disclosure of an algorithm is required, to the extent disclosure 

of any algorithms are necessary, the claims are not indefinite because the specification and claims 

disclose such algorithms. And to the extent Defendant will contend that the algorithm must 

conform to some specific format, Defendant is wrong – the Federal Circuit instructs that the 

algorithm can be expressed “in any understandable terms including as a mathematical formula, in 

prose, or as a flow chart, or in any other manner that provides sufficient structure.” Intelligent 

Automation Design, LLC v. Zimmer Biomet CMF & Thoracic, LLC, 2019-1100, at *7 (Fed. Cir. 

Jan. 30, 2020) quoting Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1312 (Fed. Cir. 2012).

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 17 of 40
13

8. means for defining access rules for each of said presence contributors, 

said access rules associated with each of said presence contributors 

defining respective rights and privileges of said presence contributors 

to access said presence information of said presentity after said 

presence contributors have provided said presence information to said 

presence server

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6: 

Function: defining access rules for each of 

said presence contributors

Structure: multiple access presence agent 

with presence server, and equivalents thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm: define respective rights and 

privileges of presence contributors to access 

the presence information of a presentity

Function: defining access rules for each of

said presence contributors, said access rules

associated with each of said presence

contributors defining respective rights and

privileges of said presence contributors to

access said presence information of said

presentity after said presence contributors have 

provided said presence information to said 

presence server.

Structure: presentity 110 along with presence 

server 160 and presence agent 150

Algorithm: Not Disclosed 

Term is Indefinite

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. Regardless, Defendant misidentifies the alleged means-plus-function term

by over-including claim language. If this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), 

the correct recitation of the term would be: “means for defining access rules for each of said 

presence contributors”. And Defendant further compounds its error by misidentifying the recited 

function to similarly over-include claim language that does not recite function. The Federal Circuit 

has emphasized that in performing the first step, “a court may not construe a means-plus-function 

limitation 'by adopting a function different from that explicitly recited in the claim.'” JVW 

Enterprises, Inc. v. Interact Accessories, Inc., 424 F.3d 1324, 1331 (Fed. Cir. 2005), quoting Micro 

Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999). That is because 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 18 of 40
14

“[a]n error in identification of the function can improperly alter the identification of structure in 

the specification corresponding to that function.” Id. at 1258. If this term were subject to 35 U.S.C. 

§ 112 ¶ 6 (and it is not), the correct recitation of function would be: “defining access rules for 

each of said presence contributors”. Defendant’s proposed construction should further be rejected 

because it recites structure that is unnecessary to perform the recited function. As discussed in 

Section III.A, above, the correct corresponding structure is: “multiple access presence agent 

with presence server, and equivalents thereof”. That is all that is required. See ’550 patent, 1:60-

63, 5:62-6:1, 6:65-7:3, 7:38-41, 7:65-8:5, 8:36-39, Figs. 3, 4. Defendant’s proposal to include 

“presentity 110” is unnecessary to perform the function of “defining access rules for each of said 

presence contributors”. See Acromed Corp. v. Sofamor Danek Group, 253 F.3d 1371, 1382 (Fed. 

Cir. 2001) (“a court may not import into the claim structural limitations from the written 

description that are unnecessary to perform the claimed function.”); Micro Chem. Inc., 194 F.3d 

at 1258 ("The statute does not permit limitation of a means-plus-function claim by adopting a

function different from that explicitly recited in the claim. Nor does the statute permit 

incorporation of structure from the written description beyond that necessary to perform the 

claimed function."). For example, the specification describes that “each multiple access presence 

agent 150a and 150b is capable of defining access rules 210 for each of the presence contributors 

120.” ’550 patent, 5:50-52. Nothing more is required. 

Finally, Defendant also proposes the term is indefinite for failure to disclose an algorithm. 

Defendant is wrong for at least two reasons. First, Defendant is wrong because neither the claims 

or Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43 (no requirement for a specific algorithm when the identified 

structure is not a general-purpose computer or processor). Second, to the extent disclosure of the 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 19 of 40
15

algorithm is deemed to be necessary, the specification, as well as the claim itself, discloses the 

corresponding algorithm: “define respective rights and privileges of presence contributors to 

access the presence information of a presentity.” See ’550 patent, 1:60-63, 5:62-6:1, 6:65-7:3, 

7:38-41, 7:65-8:5, 8:36-39, Figs. 3, 4. And to the extent Defendant will contend that the algorithm 

must conform to some specific format, Defendant is wrong – the Federal Circuit instructs that the 

algorithm can be expressed “in any understandable terms including as a mathematical formula, in 

prose, or as a flow chart, or in any other manner that provides sufficient structure.” Intelligent 

Automation Design, LLC v. Zimmer Biomet CMF & Thoracic, LLC, 2019-1100, at *7 (Fed. Cir. 

Jan. 30, 2020) quoting Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1312 (Fed. Cir. 2012). 

9. means for authenticating one of said presence contributors to 

determine said access rules associated with said one of said presence 

contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6: 

Function: authenticating one of said presence 

contributors to determine said access rules 

associated with said one of said presence 

contributors

Structure: multiple access presence agent 

with presence server, and equivalents thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm: determine if said presence 

contributor is authenticated based on provided

authentication credentials

Function: authenticating one of said presence 

contributors to determine said access rules 

associated with said one of said presence 

contributors

Structure: presence server 160 and presence 

agent 150

Algorithm: Not Disclosed 

Term is Indefinite

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. Regardless, here, the parties agree on the recited function and mostly agree 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 20 of 40
16

on the recited structure. The only disagreement (in addition to whether the term is subject to 35 

U.S.C. § 112 ¶ 6 at all), appears to be whether disclosure of an algorithm is required. It is not. In 

any case, Defendant’s contention that the term is indefinite is wrong. First, Defendant is wrong 

because neither the claims or Defendant’s own proposed structure recite a general-purpose 

computer or processor. See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the 

algorithm is deemed to be necessary, the specification discloses the corresponding algorithm:

“determine if said presence contributor is authenticated based on provided authentication 

credentials”. See ’550 patent, 1:32-34, 2:21-26, 6:44-53, 7:4-12, 7:42-47, 8:5-22, Fig. 5. 

10. means for enabling access to said presence information of said 

presentity by said one of said presence contributors based on said 

access rules associated with said one of said presence contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6: 

Function: enabling access to said presence 

information of said presentity by said one of 

said presence contributors based on said 

access rules associated with said one of said 

presence contributors

Structure: multiple access presence agent 

with presence server, and equivalents thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm: determine access rules for said 

one of said presence contributors and granting

said one of said presence contributors the 

rights and privileges associated with said 

access rules

Function: enabling access to said presence 

information of said presentity by said one of 

said presence contributors based on said access 

rules associated with said one of said presence 

contributors

Structure: presence server 160, presence agent 

150, presence user agent 140, and 

communications network 130

Algorithm: Not Disclosed 

Term is Indefinite

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 21 of 40
17

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. Regardless, here, the parties agree on the recited function, but disagree on 

the corresponding structure. If this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), 

Defendant’s proposed construction should further be rejected because it recites structure that is 

unnecessary to perform the recited function. As discussed in Section III.A, above, the correct 

corresponding structure is: “multiple access presence agent with presence server, and 

equivalents thereof”. That is all that is required. See ’550 patent, 1:63-2:2, 7:9-30, 7:61-8:7, 8:8-

22, Figs. 3, 5. Defendant’s proposal to include “presence user agent 140, and communications 

network 130” is unnecessary to perform the recited function. See Acromed, 253 F.3d at 1382 (“a 

court may not import into the claim structural limitations from the written description that are 

unnecessary to perform the claimed function.”); Micro Chem. Inc., 194 F.3d at 1258. For example, 

the specification describes that the presence agent grants a presence contributor A with the rights 

and privileges associated with the access rules for presence contributor A, which may include the 

ability to view, set, and/or change presence information about the presentity. ’550 patent, 7:13-30. 

Nothing more is required. 

Finally, Defendant also proposes the term is indefinite for failure to disclose an algorithm. 

Defendant is wrong for at least two reasons. First, Defendant is wrong because neither the claims 

or Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the algorithm is deemed 

to be necessary, the specification, as well as the claim itself, discloses the corresponding 

algorithm: “determine access rules for said one of said presence contributors and granting said 

one of said presence contributors the rights and privileges associated with said access rules.” See 

’550 patent, 1:63-2:2, 7:9-30, 7:61-8:7, 8:8-22, Figs. 3, 5. 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 22 of 40
18

11. means for enabling access further includes means for filtering said 

presence information of said presentity based on said access rules of 

said one of said presence contributors to produce filtered presence 

information and means for providing said filtered presence 

information to said one of said presence contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6, and to the extent 

Defendant’s proposal is understandable: 

Function 1 of 2: filtering said presence 

information of said presentity based on said 

access rules of said one of said presence 

contributors to produce filtered presence 

information

Structure 1 of 2: multiple access presence 

agent with presence server, and equivalents 

thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm 1 of 2: select some or all of said 

presentity’s presence information to allow 

said one of said presence contributor to access 

or view 

Function 2 of 2: providing said filtered 

presence information to said one of said 

presence contributors

Structure 2 of 2: multiple access presence 

agent with presence server, and equivalents 

thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm 2 of 2: allow said one of said 

presence contributor to access or view the 

selected some or all of said presentity’s 

presence information

“means for enabling access further includes 

means for filtering said presence information 

of said presentity based on said access rules of 

said one of said presence contributors to 

produce filtered presence information “

Function: filtering said presence information 

of said presentity based on said access rules of 

said one of said presence contributors to 

produce filtered presence information

Structure: presence server 160 and presence 

agent 150 with access rules 210

Algorithm: Not Disclosed 

Term is Indefinite

“means for providing said filtered presence 

information to said one of said presence 

contributors”

Function: providing said filtered presence

information to said one of said presence

contributors

Structure: presence server 160, presence agent 

150, presence user agent 140, and 

communications network 130 or 135

Algorithm: Not Disclosed 

Term is Indefinite

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 23 of 40
19

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. Regardless, Defendant misidentifies the alleged means-plus-function term 

by over-including claim language. And based on Defendant’s proposed construction, it appears 

that Defendant admits as much by identifying two different functions for this “term”. As it is 

Defendant who proposes this “term” for construction, and because WSOU does not want to guess 

as to Defendant’s intention nor can WSOU read Defendant’s mind, WSOU will address this “term” 

in the way Defendant has presented it, as having two separate functions and corresponding 

structures. However, to the extent WSOU can understand Defendant’s proposal regarding this as 

a single “term” for construction, this is improper at least because The Federal Circuit has 

emphasized that in performing the first step, “a court may not construe a means-plus-function 

limitation 'by adopting a function different from that explicitly recited in the claim.'” JVW 

Enterprises, Inc. v. Interact Accessories, Inc., 424 F.3d 1324, 1331 (Fed. Cir. 2005), quoting Micro 

Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999). 

Regardless, if this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), and if this term 

was further evaluated as two separate terms (which Defendant did not propose and does not 

specify), then the identified functions proposed by Defendant is addressed separately below: 

For the alleged function: “filtering said presence information of said presentity based on 

said access rules of said one of said presence contributors to produce filtered presence 

information”, Defendant’s proposed construction should further be rejected because it recites 

structure that is unnecessary to perform the recited function. As discussed in Section III.A, above, 

the correct corresponding structure is: “multiple access presence agent with presence server, 

and equivalents thereof”. That is all that is required. See ’550 patent, 4:44-55, 5:48-6:11, 7:48-54, 

8:1-4, Figs. 4, 5; see also id., 8:18-22. Defendant’s proposal to include “access rules 210” is 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 24 of 40
20

unnecessary to perform the recited function. See Acromed, 253 F.3d at 1382 (“a court may not 

import into the claim structural limitations from the written description that are unnecessary to 

perform the claimed function.”); Micro Chem. Inc., 194 F.3d at 1258. Here, the access rules are 

expressly recited in the proposed function itself, and furthermore, as the specification describes, 

while the access rules are an input in performing the filtering, the actual performance of filtering 

is accomplished by the multiple access presence agent. See ’550 patent, 5:48-6:11. And Defendant 

also proposes the proposed function/”term” is indefinite for failure to disclose an algorithm. 

Defendant is wrong for at least two reasons. First, Defendant is wrong because neither the claims 

or Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the algorithm is deemed 

to be necessary, the specification, as well as the claim itself, discloses the corresponding 

algorithm: “select some or all of said presentity’s presence information to allow said one of said 

presence contributor to access or view.” See ’550 patent, 4:44-55, 5:48-6:11, 7:48-54, 8:1-4, Figs. 

4, 5. 

Next, for the alleged function: “providing said filtered presence information to said one of 

said presence contributors”, Defendant’s proposed construction should further be rejected because 

it recites structure that is unnecessary to perform the recited function. As discussed in Section 

III.A, above, the correct corresponding structure is: “multiple access presence agent with 

presence server, and equivalents thereof”. That is all that is required. See ’550 patent, 4:44-55, 

5:48-6:11, 7:48-54, 8:1-4, Figs. 4, 5; see also id., 8:18-22. Defendant’s proposal to include 

“presence user agent 140, and communications network 130 or 135” is unnecessary to perform the 

recited function. See Acromed, 253 F.3d at 1382 (“a court may not import into the claim structural 

limitations from the written description that are unnecessary to perform the claimed function.”); 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 25 of 40
21

Micro Chem. Inc., 194 F.3d at 1258. For example, the specification describes that the multiple 

access presence agent may have access rules that cause presence contributor A to only access/view 

some or all of a presentity’s presence information. ’550 patent, 5:48-6:11. 

Defendant also asserts the claim language is indefinite ostensibly because there is no 

disclosure of a corresponding algorithm. Defendant is wrong for at least two reasons. First, neither 

the claims or Defendant’s own (improper) proposed structure recite a general-purpose computer 

or processor. See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the algorithm 

is deemed to be necessary, the specification, as well as the claim itself, discloses the 

corresponding algorithm: “allow said one of said presence contributor to access or view the 

selected some or all of said presentity’s presence information.” See ’550 patent, 4:44-55, 5:48-

6:11, 7:48-54, 8:1-4, Figs. 4, 5. 

12. means for enabling access further includes means for enabling said 

one of said presence contributors to update said presence information 

of said presentity based on said access rules of said one of said 

presence contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6: 

Function: enabling said one of said presence 

contributors to update said presence 

information of said presentity based on said 

access rules of said one of said presence 

contributors

Structure: multiple access presence agent 

with presence server, and equivalents thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm: providing one of said presence 

Function: enabling said one of said presence 

contributors to update said presence 

information of said presentity based on said 

access rules of said one of said presence 

contributors

Structure: presence contributors 120, presence 

server 160, presence agent 150 with access 

rules 210, presence user agent 140, and 

communications network 130

Algorithm: Not Disclosed 

Term is Indefinite

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 26 of 40
22

contributors the ability to set/change the 

presence information of said presentity subject 

to any limits on the ability according to said 

access rules

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. And Defendant misidentifies the alleged means-plus-function term by overincluding claim language. Regardless, here, the parties agree on the recited function, but disagree 

on the corresponding structure. If this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), 

Defendant’s proposed construction should further be rejected because it recites structure that is 

unnecessary to perform the recited function. As discussed in Section III.A, above, the correct 

corresponding structure is: “multiple access presence agent with presence server, and 

equivalents thereof”. That is all that is required. See ’550 patent, 5:48-6:1, 6:12-22, 7:13-30, 7:54-

60, 7:65-8:4; see also id., 8:18-22. Defendant’s proposal to include “presence contributors 120, 

access rules 210, presence user agent 140, and communications network 130” is unnecessary to 

perform the recited function. See Acromed, 253 F.3d at 1382 (“a court may not import into the 

claim structural limitations from the written description that are unnecessary to perform the 

claimed function.”); Micro Chem. Inc., 194 F.3d at 1258. For example, the specification describes

that in order to restrict access to the presence information managed by multiple presence agents, 

access rules may be created to define the scope and/or ability of a presence contributor to 

set/change the presence information of a presentity. ’550 patent, 5:48-6:22; see also id., 8:18-22. 

Only the multiple access presence agent and presence server are necessary to perform the recited 

function. The access rules are only an input to performing the recited function and do no perform 

the recited function, the presence contributors only allowed provide further inputs and do not 

perform the recited function, and the rest of Defendant’s extraneous proposal, presence user agent, 

and communications network have no role in the performance of the recited function. 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 27 of 40
23

Finally, Defendant also proposes the term is indefinite for failure to disclose an algorithm. 

Defendant is wrong for at least two reasons. First, Defendant is wrong because neither the claims 

or Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the algorithm is deemed 

to be necessary, the specification, as well as the claim itself, discloses the corresponding 

algorithm: “providing one of said presence contributors the ability to set/change the presence 

information of said presentity subject to any limits on the ability according to said access rules.”

See ’550 patent, 5:48-6:1, 6:12-22, 7:13-30, 7:54-60, 7:65-8:4.

13. means for enabling access further includes means for enabling said 

one of said presence contributors to define preference information 

associated with said presence information of said presentity based on 

said access rules of said one of said presence contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6: 

Function: enabling said one of said presence 

contributors to define preference information 

associated with said presence information of 

said presentity based on said access rules of 

said one of said presence contributors

Structure: multiple access presence agent 

with presence server, and equivalents thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm: providing one of said presence 

contributors the ability to set/change the 

preference information of said presentity 

subject to any limits on the ability according 

to said access rules

Function: enabling said one of said presence 

contributors to define preference information 

associated with said presence information of 

said presentity based on said access rules of 

said one of said presence contributors

Structure: presence server 160, presence agent 

150 with access rule 210, presence user agent 

140, and communications network 130

Algorithm: Not Disclosed 

Term is Indefinite

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 28 of 40
24

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. And Defendant misidentifies the alleged means-plus-function term by overincluding claim language. Regardless, here, the parties agree on the recited function, but disagree 

on the corresponding structure. If this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), 

Defendant’s proposed construction should further be rejected because it recites structure that is 

unnecessary to perform the recited function. As discussed in Section III.A, above, the correct 

corresponding structure is: “multiple access presence agent with presence server, and 

equivalents thereof”. That is all that is required. See ’550 patent, 4:44-55, 5:48-52, 6:23-31, 7:13-

30; see also id., 8:18-22. Defendant’s proposal to include “access rule 210, presence user agent 

140, and communications network 130” is unnecessary to perform the recited function. See 

Acromed, 253 F.3d at 1382 (“a court may not import into the claim structural limitations from the 

written description that are unnecessary to perform the claimed function.”); Micro Chem. Inc., 194 

F.3d at 1258. For example, the specification describes that in order to restrict access to the presence 

information managed by multiple presence agents, access rules may be created to define the scope 

and/or ability of a presence contributor to set/change the preference information of a presentity. 

’550 patent, 5:48-52, 6:23-31; see also id., 8:18-22. Only the multiple access presence agent and 

presence server are necessary to perform the recited function. The access rules are only an input 

to performing the recited function and do not perform the recited function, and the presence user 

agent and communications network have no role in the performance of the recited function. 

Finally, Defendant also proposes the term is indefinite for failure to disclose an algorithm. 

Defendant is wrong for at least two reasons. First, Defendant is wrong because neither the claims 

or Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the algorithm is deemed 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 29 of 40
25

to be necessary, the specification, as well as the claim itself, discloses the corresponding 

algorithm: “providing one of said presence contributors the ability to set/change the preference 

information of said presentity subject to any limits on the ability according to said access rules.”

See ’550 patent, 5:48-52, 6:23-31; see also id., 8:18-22.

14. means for authenticating further includes means for assigning 

authentication credentials to each of said presence contributors and 

means for receiving said authentication credentials of said one of said 

presence contributors to authenticate said one of said presence 

contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6, and to the extent 

Defendant’s proposal is understandable: 

Function 1 of 2: assigning authentication 

credentials to each of said presence 

contributors 

Structure 1 of 2: multiple access presence 

agent with presence server, and equivalents 

thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm 1 of 2: associating authentication 

credentials with each of said presence 

contributors

Function 2 of 2: receiving said authentication 

credentials of said one of said presence 

contributors to authenticate said one of said 

presence contributors

Structure 2 of 2: multiple access presence 

agent with presence server, and equivalents 

thereof

Furthermore, if the Court deems disclosure of 

“means for assigning authentication credentials 

to each of said presence contributors”

Function: assigning authentication credentials 

to each of said presence contributors

Structure: presentity 110 and presence server 

160 with presence agent 150

Algorithm: Not Disclosed 

Term is Indefinite

“means for receiving said authentication 

credentials of said one of said presence 

contributors to authenticate said one of said 

presence contributors”

Function: receiving said authentication 

credentials of said one of said presence 

contributors to authenticate said one of said 

presence contributors

Structure: 

presence contributors 120, presence server 

160, presence agent 150, presence user agent 

140, and communications network 130 or 135

Algorithm: Not Disclosed 

Term is Indefinite

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 30 of 40
26

an algorithm is required: 

Algorithm 2 of 2: not required under In re 

Katz Interactive Call Processing Patent Litig., 

639 F.3d 1303 (Fed. Cir. 2011)

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. Regardless, Defendant misidentifies the alleged means-plus-function term 

by over-including claim language. And based on Defendant’s proposed construction, it appears 

that Defendant admits as much by identifying two different functions for this “term”. As it is 

Defendant who proposes this “term” for construction, and because WSOU does not want to guess 

as to Defendant’s intention nor can WSOU read Defendant’s mind, WSOU will address this “term” 

in the way Defendant has presented it, as having two separate functions and corresponding 

structures. However, to the extent WSOU can understand Defendant’s proposal regarding this as 

a single “term” for construction, this is improper at least because The Federal Circuit has 

emphasized that in performing the first step, “a court may not construe a means-plus-function 

limitation 'by adopting a function different from that explicitly recited in the claim.'” JVW 

Enterprises, 424 F.3d at 1331, quoting Micro Chem., 194 F.3d at 1258. 

Regardless, if this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), and if this term 

was further evaluated as two separate terms (which Defendant did not propose and does not 

specify), then the identified functions proposed by Defendant is addressed separately below: 

For the alleged function: “assigning authentication credentials to each of said presence 

contributors”, Defendant’s proposed construction should further be rejected because it recites 

structure that is unnecessary to perform the recited function. As discussed in Section III.A, above, 

the correct corresponding structure is: “multiple access presence agent with presence server, 

and equivalents thereof”. That is all that is required. See ’550 patent, 2:21-26, 6:44-57, 7:4-12, 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 31 of 40
27

7:42-47, 8:5-22, Fig. 5. Defendant’s proposal to include “presentity 110” is unnecessary to perform 

the recited function. See Acromed, 253 F.3d at 1382 (“a court may not import into the claim 

structural limitations from the written description that are unnecessary to perform the claimed 

function.”); Micro Chem. Inc., 194 F.3d at 1258. Here, the presentity isn’t involved in any way 

with the authentication credentials of the presence contributors. Additionally, as the specification 

discusses, the authentication credentials for each presence contributor are assigned by the presence 

agent and provided to the presence contributors and maintained by the presence agent for later use 

in authenticating the presence contributors. See ’550 patent, 6:54-57. And Defendant also proposes 

the proposed function/“term” is indefinite for failure to disclose an algorithm. Defendant is wrong 

for at least two reasons. First, Defendant is wrong because neither the claims or Defendant’s own 

(improper) proposed structure recite a general-purpose computer or processor. See Nevro Corp.,

955 F.3d at 42-43. Second, to the extent disclosure of the algorithm is deemed to be necessary, the 

specification, as well as the claim itself, discloses the corresponding algorithm: “associating 

authentication credentials with each of said presence contributors.” See ’550 patent, 2:21-26, 6:44-

57, 7:4-12, 7:42-47, 8:5-22, Fig. 5. 

Next, for the alleged function: “receiving said authentication credentials of said one of said 

presence contributors to authenticate said one of said presence contributors”, Defendant’s 

proposed construction should further be rejected because it recites structure that is unnecessary to 

perform the recited function. As discussed in Section III.A, above, the correct corresponding 

structure is: “multiple access presence agent with presence server, and equivalents thereof”. That 

is all that is required. See ’550 patent, 1:32-34, 2:21-26, 6:44-57, 7:4-12, 7:42-47, 8:5-22, Fig. 5. 

Defendant’s proposal to include “presence contributors 120, presence user agent 140, and 

communications network 130 or 135” is unnecessary to perform the recited function. See Acromed, 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 32 of 40
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253 F.3d at 1382 (“a court may not import into the claim structural limitations from the written 

description that are unnecessary to perform the claimed function.”); Micro Chem. Inc., 194 F.3d 

at 1258. The presence contributors only provide an input into the function, and presence user agent, 

and communications network are not involved in performing the function of “receiving said 

authentication credentials...”. As the specification discusses, “the authentication credentials of 

one of the presence contributors are received at the multiple presence agent.” See ’550 patent, 8:8-

10. 

Defendant also objects that the term is indefinite allegedly because the specification fails 

to disclose an algorithm. Defendant is wrong for at least two reasons. First, neither the claims or 

Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43. Second, the court need not search for a disclosed algrothim 

here because the claim language recites sufficient structure—i.e., “multiple access presence agent 

with presence server, and equivalents thereof”. In the Federal Circuit's decision in In re Katz 

Interactive Call Processing Patent Litig., 639 F.3d 1303 (Fed. Cir. 2011), the Federal Circuit states 

that “[a]bsent a possible narrower construction of the terms “processing,” “receiving,” and 

“storing,” discussed below, those functions can be achieved by any general purpose computer 

without special programming. As such, it [is] not necessary to disclose more structure than the 

general purpose processor that performs those functions.” In re Katz, 639 F.3d 1316 (emphasis 

added). And other courts have agreed and found that “means for receiving” functions do not require 

an algorithm. See e.g. Finjan, Inc. v. Sophos, Inc., No. 14-CV-01197-WHO, 2015 WL 890621, at 

*8-9 (N.D. Cal. Mar. 2, 2015) (holding that the patent need not specify an algorithm as the 

corresponding structure to the simple 'Receiving a Downloadable' function); Freeny v. Murphy 

USA Inc., No. 2:13-CV-791-RSP, 2015 WL 294102, at *37 (E.D. Tex. Jan. 21, 2015) (‘means for 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 33 of 40
29

receiving' data does not require algorithm); e-LYNXX Corp. v. Innerworkings, Inc., No. 1:10-CV2535, 2012 WL 4484921, at *19 (M.D. Pa. Sept. 27, 2012) (‘means for receiving an electronic 

communication' does not require disclosed algorithm). 

15. means for enabling further includes means for enabling access to said 

presence information of said presentity by multiple ones of said 

presence contributors simultaneously based on said respective access 

rules associated with said multiple ones of said presence contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6: 

Function: enabling access to said presence 

information of said presentity by multiple 

ones of said presence contributors 

simultaneously based on said respective 

access rules associated with said multiple ones 

of said presence contributors

Structure: multiple access presence agent 

with presence server, and equivalents thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm: provide access by multiple ones 

of said presence contributors simultaneously

to said presence information of said 

presentity, each of said presence contributors

possibly having different rights and privileges

to said presence information based on said 

respective access rules

Function: enabling access to said presence 

information of said presentity by multiple ones 

of said presence contributors simultaneously 

based on said respective access rules 

associated with said multiple ones of said 

presence contributors

Structure: presence server 160, presence agent 

150, presence user agents 140, and 

communications network 130

Algorithm: Not Disclosed 

Term is Indefinite

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. And Defendant misidentifies the alleged means-plus-function term by overincluding claim language. Regardless, here, the parties agree on the recited function, but disagree 

on the corresponding structure. If this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 34 of 40
30

Defendant’s proposed construction should further be rejected because it recites structure that is 

unnecessary to perform the recited function. As discussed in Section III.A, above, the correct 

corresponding structure is: “multiple access presence agent with presence server, and 

equivalents thereof”. That is all that is required. See ’550 patent, 1:32-51, 5:24-27, 5:48-6:1, 6:32-

43, 6:58-7:30, 8:5-22, Fig. 3. Defendant’s proposal to include “presence user agents 140, and 

communications network 130” is unnecessary to perform the recited function. See Acromed, 253 

F.3d at 1382 (“a court may not import into the claim structural limitations from the written 

description that are unnecessary to perform the claimed function.”); Micro Chem. Inc., 194 F.3d 

at 1258. For example, the specification describes that the multiple access presence agent may be 

accessed by multiple presence contributors (’550 patent 5:24-27), and based on the respective 

access rules for each of the multiple presence contributors, the multiple presence contributors may 

simultaneously access the presence information of the presentity, each having different rights and 

privileges. ’550 patent 6:32-43; see also id., 7:12-30 (simultaneous access to the presence 

information of the presentity where presence contributor A may view, set and/or change presence 

information of the presentity based on access rules associated with presence contributor A, and 

presence contributor B may view, set and/or change presence information of the presentity based 

on access rules associated with presence contributor B.). Only the multiple access presence agent 

and presence server are necessary to perform the recited function. The presence user agent and 

communications network have no role in the performance of the recited function. 

Finally, Defendant also proposes the term is indefinite for failure to disclose an algorithm. 

Defendant is wrong for at least two reasons. First, Defendant is wrong because neither the claims 

or Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the algorithm is deemed 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 35 of 40
31

to be necessary, the specification, as well as the claim itself, discloses the corresponding 

algorithm: “provide access by multiple ones of said presence contributors simultaneously to said 

presence information of said presentity, each of said presence contributors possibly having 

different rights and privileges to said presence information based on said respective access rules.”

See ’550 patent, 5:48-52, 6:23-31; see also id., 8:18-22.

16. means for enabling further includes means for providing hierarchical 

access by said presence contributors to said presence information of 

said presentity

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning, not subject to 35 

U.S.C. § 112 ¶ 6. 

But if the Court deems this term is subject to 

35 U.S.C. § 112 ¶ 6: 

Function: providing hierarchical access by 

said presence contributors to said presence 

information of said presentity

Structure: multiple access presence agent 

with presence server, and equivalents thereof

Furthermore, if the Court deems disclosure of 

an algorithm is required: 

Algorithm: provide access by presence 

contributors to said presence information of 

said presentity according to a priority where 

presence contributors having a lower priority 

are denied access to said presence information 

of said presentity while a presence contributor 

having a higher priority is accessing said 

presence information of said presentity

Function: providing hierarchical access by 

said presence contributors to said presence 

information of said presentity

Structure: presence server 160, presence agent 

150, presence user agent 140, and 

communications network 130 or 13

Algorithm: Not Disclosed 

Term is Indefinite

As an initial matter, this term is not subject to 35 U.S.C. § 112 ¶ 6 for the reasons discussed 

above in Section III.A. And Defendant misidentifies the alleged means-plus-function term by overincluding claim language. Regardless, here, the parties agree on the recited function, but disagree 

on the corresponding structure. If this term were subject to 35 U.S.C. § 112 ¶ 6 (and it is not), 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 36 of 40
32

Defendant’s proposed construction should further be rejected because it recites structure that is 

unnecessary to perform the recited function. As discussed in Section III.A, above, the correct 

corresponding structure is: “multiple access presence agent with presence server, and 

equivalents thereof”. That is all that is required. See ’550 patent, 1:32-51, 5:24-27, 5:48-6:1, 6:32-

43, 6:58-7:30, 8:5-22, Fig. 3. Defendant’s proposal to include “presence user agent 140, and 

communications network 130 or 13” is unnecessary to perform the recited function. See Acromed, 

253 F.3d at 1382 (“a court may not import into the claim structural limitations from the written 

description that are unnecessary to perform the claimed function.”); Micro Chem. Inc., 194 F.3d 

at 1258. For example, the specification describes that the multiple access presence agent may be 

accessed by multiple presence contributors (’550 patent 5:24-27), and under a hierarchical access 

of the presence information of the presentity, presence contributor B may be denied access to the 

presence information of the presentity while presence contributor A is accessing the presence 

information of the presentity. ’550 patent 6:32-43. Only the multiple presence access agent and 

presence server are necessary to perform the recited function. The presence user agent and 

communications network have no role in the performance of the recited function. 

Finally, Defendant also proposes the term is indefinite for failure to disclose an algorithm. 

Defendant is wrong for at least two reasons. First, Defendant is wrong because neither the claims 

or Defendant’s own (improper) proposed structure recite a general-purpose computer or processor. 

See Nevro Corp., 955 F.3d at 42-43. Second, to the extent disclosure of the algorithm is deemed 

to be necessary, the specification, as well as the claim itself, discloses the corresponding 

algorithm: “provide access by presence contributors to said presence information of said 

presentity according to a priority where presence contributors having a lower priority are denied 

access to said presence information of said presentity while a presence contributor having a higher 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 37 of 40
33

priority is accessing said presence information of said presentity.” See ’550 patent, 5:48-52, 6:23-

31; see also id., 8:18-22.

B. Other disputed terms (without the word “means”)

17. presentity / presentities

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning the entity whose presence is being represented

This term does not require any construction because a person of ordinary skill in the art 

would readily understand this term, especially upon review of the specification. Moreover, 

Defendant’s proposed construction should be rejected at least because it is vague and confusing. 

First, it is not clear if Defendant intends to improperly limit the term to a single “entity” by 

prefacing it with the word “the”. Second, the phrase “whose presence is being represented” is 

unclear and unhelpful. For example, it is not clear what “being represented means”, and moreover, 

it is unnecessary. As the specification expressly states that “presentity 110 provides presence 

information indicating the presentity’s presence state to presence system 100”. ’550 patent, 3:1-4. 

If Defendant’s proposed construction is attempting to paraphrase that statement, it is unneeded and 

unhelpful. Finally, Defendant’s use of the word “entity” is unclear and can only cause confusion. 

The specification expressly puts no limits on what a presentity may be, for example the 

specification states that examples of presentities “include, but are not limited to, a person (e.g., 

user, administrator, manager or personnel), a group of people, a service (e.g., Software application 

or data), a device or equipment (e.g., computer, fax machine or copy machine) and a facility (e.g., 

a room, an office or a building).”). Id. 2:62-67 (emphasis added). In other words, presentities can 

be anything and are without limit, so long as it can provide presence information indicating the 

presentity’s presence state. In sum, Defendant’s proposed construction is vague and confusing, 

and should be rejected. 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 38 of 40
34

18. presence contributors

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning an entity that provides presence information 

about a presentity to a presence server or 

presence agent

This term does not require any construction because a person of ordinary skill in the art 

would readily understand this term, especially upon review of the specification. Moreover, 

Defendant’s proposed construction should be rejected at least because it is vague and confusing. 

First, Defendant’s proposed construction seeking to limit the term to “provid[ing] presence 

information about a presentity to a presence server or presence agent” is unclear and unhelpful. 

For example, the claim language itself already recites a multiple access presence agent and 

presence server, and further the claim language also expressly recites, for example, enabling 

presence contributors to update presence information of a presentity. See e.g. ’550 patent, claim 

11, 10:31-34. Therefore, at best, Defendant’s proposed construction is redundant and at worst

Defendant’s proposed construction is a bad paraphrasing of the claim language that is misleading. 

Next, Defendant’s use of the word “entity” is unclear and can only cause confusion. The 

specification expressly puts no limits on what a presence contributor may be, for example the 

specification states that examples of presence contributors “include, but are not limited to, 

devices (e.g., telephone, printer or fax machine), services, software applications, facilities and 

users (e.g., user presentity, administrator, personnel and other users).”). Id. 3:10-14 (emphasis 

added). In other words, presence contributors can be anything and are without limit, so long as it 

can provide presence information indicating the presentity’s presence state. In sum, Defendant’s 

proposed construction is vague and confusing, and should be rejected. 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 39 of 40
35

Dated: January 8, 2021 Respectfully submitted,

By: /s/ Ryan Loveless

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Brett A. Mangrum 

Texas Bar No. 24065671 

Travis L. Richins 

Texas Bar No. 24061296 

Jeffrey Huang 

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Brett@EtheridgeLaw.com 

Travis@EtheridgeLaw.com 

Jhuang@EtheridgeLaw.com 

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

Counsel for Plaintiff WSOU Investments, LLC

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing instrument was served or delivered electronically 

via U.S. District Court [LIVE]- Document Filing System, to all counsel of record, on this the 8th

day of January, 2021.

/s/ James L. Etheridge

James L. Etheridge 

Case 6:20-cv-00456-ADA Document 46 Filed 01/08/21 Page 40 of 40