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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.

DELL TECHNOLOGIES INC.,

DELL INC., EMC CORPORATION,

AND VMWARE, INC.,

Defendants.

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CIVIL ACTION 6:20-CV-00477-ADA

CIVIL ACTION 6:20-CV-00482-ADA

PATENT CASE

JURY TRIAL DEMANDED

PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 1 of 13
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TABLE OF CONTENTS

I. Legal Standards .................................................................................................................1

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

B. Indefiniteness..........................................................................................................2

II. U.S. Patent No. 7,424,020 (Case No. 6:20-cv-00482).......................................................3

A. “removing, at the network node, the protocol data of a portion of 

protocol layers from the received data stream” (claim 1) / “removes 

protocol data from a portion of protocol layers from a data stream” 

(claim 6)...................................................................................................................3

B. “a control unit which removes protocol data from a portion of protocol 

layers from a data stream received from the communication network 

via the second interface, the data stream comprising useful data and 

the protocol data, and switches a remaining data stream to be 

transmitted to one of the terminals via the first interface” (Claim 6)...............4

1. The term is not indefinite under IPXL.....................................................4

2. The term is not subject to 35 U.S.C. §112, ¶6..........................................5

C. “bus system”...........................................................................................................7

III. U.S. Patent No. 8,913,489 (Case No. 6:20-cv-00477) Claim Terms ...............................8

3. “the first set of port interfaces of the multi-chassis link 

aggregate” (Claims 1, 8, 15) ......................................................................8

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 2 of 13
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TABLE OF AUTHORITIES

Cases

Azure Networks, LLC v. CSR PLC,

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

Canon, Inc. v. TCL Elecs. Holdings Ltd.,

2:18-CV-546-JRG, 2020 WL 2098197 (E.D. Tex. May 1, 2020).............................................. 6

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

Enzo Biochem, Inc. v. Applera Corp.,

599 F.3d 1325 (Fed. Cir. 2010)................................................................................................... 8

IPXL Holdings, L.L.C. v. Amazon.com, Inc.,

430 F.3d 1377 (Fed. Cir. 2005)................................................................................................... 5

MasterMine Software, Inc. v. Microsoft Corp.,

874 F.3d 1307 (Fed. Cir. 2017)................................................................................................... 5

Nautilus, Inc. v. Biosig Instruments, Inc.,

572 U.S. 898 (2014)................................................................................................................ 2, 3

Phillips v. AWH Corp.,

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

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

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

Thorner v. Sony Computer Entm't Am. LLC,

669 F.3d 1362 (Fed. Cir. 2012)............................................................................................... 2, 7

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)................................................................................................... 5

Statutes

35 U.S.C. § 112........................................................................................................................... 2, 4

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 3 of 13
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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.

I. 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), cert. denied, 546 U.S. 

1170 (2006); 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 Micro-Devices, 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 

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 4 of 13
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Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as his/her own lexicographer, the 

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 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. 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-00477-ADA Document 80 Filed 02/17/21 Page 5 of 13
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II. U.S. Patent No. 7,424,020 (Case No. 6:20-cv-00482)

A. “removing, at the network node, the protocol data of a portion of protocol 

layers from the received data stream” (claim 1) / “removes protocol data 

from a portion of protocol layers from a data stream” (claim 6)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite 

Dell’s indefiniteness position fails for the following reasons:1

First, the claim language is clear on its face as reflected by its recitation in claim 1 

(“removes protocol data from a portion of protocol layers”) or similarly in claim 6 (“removing ... 

the protocol data of a portion of protocol layers”). The specification comports with the claim 

language describing one embodiment where “the network node FSW1 processes the 

communication protocols of one or more communication layers and removes the protocol data

allocated to these communication layers.” ’020 patent at 3:29-33. The specification also 

contemplates scenarios where protocol data is being removed from one or two layers (e.g., “the 

first ... and/or the third layer”). Id. at 3:34-37. Given the unambiguous recitation of “a portion of 

the protocol layers” and the description in the specification, a POSITA would understand that the 

data need only be removed in at least one protocol layer. Accordingly, the terms are not indefinite 

because the intrinsic evidence informs one of skill in the art at the time of the invention “about the 

scope of the invention with reasonable certainty.” Nautilus, 572 U.S. at 910-11.

1 In its Invalidity Contentions and the parties’ discussions, Dell has indicated that its 

indefiniteness allegation relates to the phrase “a portion of protocol layers.” See Ex. A at 85. 

Dell has yet to explain why it now seeks the construction of the broader phrases listed in the 

heading above. WSOU has focused on the “a portion of protocol layers.” To the extent Dell 

identifies other alleged indefinite terms, WSOU will respond in its Reply including raising 

waiver.

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 6 of 13
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Second, Dell concedes indefiniteness by asserting an alternative construction of the term 

addressed in the next section (i.e., “a control unit which removes ...”). In particular, the “remove 

protocol data ...” term that Dell claims is indefinite this section is part of the longer term in the 

next section. Dell then repeats verbatim the “remove protocol data ...” term as part of its alleged 

function under its alternative 35 U.S.C. §112, ¶6 construction. It is logically inconsistent for Dell 

to claim that the “remove protocol data ...” term is indefinite, and then rely on that very same

term verbatim as the function and identifying the corresponding structure under 35 U.S.C. §112, 

¶6. Clearly, the “remove protocol data ...” term was definite enough for Dell to understand its 

alleged §112, ¶6 function and then identify an alleged corresponding structure.

B. “a control unit which removes protocol data from a portion of protocol layers 

from a data stream received from the communication network via the second 

interface, the data stream comprising useful data and the protocol data, and 

switches a remaining data stream to be transmitted to one of the terminals 

via the first interface” (Claim 6)

WSOU’s 

Proposed 

Construction

Defendant’s Proposed Construction

Plain and 

ordinary 

meaning

Indefinite. In the alternative: this term is subject to 35 U.S.C. § 112, ¶ 6. 

Function: [1] removes protocol data from a portion of protocol layers from a data 

stream received from the communication network via the second interface, the data 

stream comprising useful data and the protocol data, and [2] switches a remaining 

data stream to be transmitted to one of the terminals via the first interface 

Structure: control unit CONTR executing function PHN, containing processes P1 

to P3 and function SW; and equivalent structures

Dell proposes two alternative constructions, both of which are erroneous.

1. The term is not indefinite under IPXL

First, procedurally, WSOU disputes that Dell has preserved its invalidity basis given its 

failure to identify such theory in its Invalidity Contentions. Dell merely listed this term as indefinite 

in its Invalidity Contentions and did not provide any notice of its indefiniteness theory. Ex. A at 

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 7 of 13
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86. In telephone discussions, Dell has since explained that its indefiniteness theory is based solely 

on IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377 (Fed. Cir. 2005).

Second, turning to the merits, Dell’s assertion of IPXL lacks merit because this term does 

not cover “a single claim covering both an apparatus and a method of use of that apparatus.” See

MasterMine Software, Inc. v. Microsoft Corp., 874 F.3d 1307, 1313 (Fed. Cir. 2017) (citing IPXL, 

430 F.3d at 1384). In particular, the Federal Circuit has since clarified post-IPXL that claims are 

not indefinite “merely [because the] claim that the system ‘possess[es] the recited structure [which 

is] capable of performing the recited functions.’” MasterMine, 874 F.3d at 1316 (discussing cases 

and quoting Microprocessor Enhancement Corp. v. Tex. Instruments Inc., 520 F.3d 1367, 1375 

(Fed. Cir. 2008)). Here, just as the claim MasterMine, claim 6 includes recited structure (“control 

unit”) which is capable of performing recited functions (“removes protocol data ...” and “switches 

a remaining data stream ...”). See id. IPXL does not apply when the “focus on the capabilities of 

the system,” as opposed to the claims in IPXL that “focus on specific actions performed by the 

user.” MasterMine, 874 F.3d at 1316. Here, the claims are focused on the capabilities of the 

system; the term “user” is not even recited in the claims as was in IPXL.

2. The term is not subject to 35 U.S.C. §112, ¶6

Dell alleges in the alternative that this term is subject to 35 U.S.C. §112, ¶6. 

First, the lack of the word “means” in claim 6 terms raises a rebuttable presumption against 

applying Section 112, ¶ 6. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015)

(en banc). While the burden lies with Dell to rebut the presumption, it failed to articulate any basis 

in its Invalidity Contentions as allegedly rebutting the presumption against applying §112, ¶ 6. 

Second, Dell also overlooks claim terms that connote structure to a POSITA. Here, the 

claim language at issue is not purely functional but rather recites specific structure (“control unit”) 

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 8 of 13
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that can perform respective tasks set forth in the body the claims. The specification comports with 

the claims describing a “control unit CONTR” as “a computer with peripheral components and a 

software platform sitting on this computer ... [with a] hardware and software platform” where 

the “control unit CONTR performs the functions PHTE1 to PHTE3, SW and PHN described 

below.” ’020 patent at 3:15-22. In addition to the claims and specification, the term “control unit” 

has been found to recite specific structure in a case very similar to the issue here. Canon, Inc. v. 

TCL Elecs. Holdings Ltd., 2:18-CV-546-JRG, 2020 WL 2098197, at *15 (E.D. Tex. May 1, 2020). 

In Canon, the court found the term “control unit” to have sufficient structure based on (i) “extrinsic 

dictionary definition strongly supports a finding that a ‘control unit’ connotes definite structure to 

one of skill in the art”; (ii) “specific description of the operation of the control unit with the claim 

further avoids a finding of a means-plus-function limitation”; and “the ‘control’ modifier imparts 

structural significance to the term [unit].” See id (citing Microsoft Corporation, Microsoft 

Computer Dictionary (5th ed. 2002), at 128 (defining “control unit” as “A device or circuit that 

performs an arbitrating or regulating function.”)). Here, the Canon court reasoning applies with 

equal force here. The dictionary definition relied on in Canon is from 2002, around the time of the 

priority date here. Just as in Canon, the claim recites both the structural component (“control unit”) 

and the specific operation of the control unit (“removes protocol data ... and “switches a remaining 

data stream ...”). Finally, because the term is the same at issue in Canon, “the ‘control’ modifier 

imparts structural significance to the term [unit].” See id.

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 9 of 13
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C. “bus system”

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning “a network that does not include any active 

components such as switching nodes, gateways, 

routers, or bridges, wherein all nodes are 

connected to a single wire”

Dell’s construction suffers from multiple flaws. 

First, the plain and ordinary meaning of this term should stand because neither of the 

recognized Thorner exceptions—lexicography or disclaimer—apply. 669 F.3d at 1365. Both the 

words “bus” and “system” and the term “bus system” would readily be understood by a POSITA. 

Second, the specification contradicts Dell’s construction. The specification describes 

“[p]referably the communication network KN is a bus system.” ’020 patent at 2:29. To avoid the 

possibility of “bus system” being unnecessarily restricted (as Dell now attempts), the specification 

then goes onto expressly clarify that it is “possible” that the “communication network KN [which 

is previously disclosed as preferably a bus system] comprises active components, such as 

switching nodes, gateways, routers, [sic] bridges.” Id. at 2:29-32. Paradoxically, Dell now carves 

out the very clarification that was made by the patentee. The genesis for Dell’s carve-out (i.e., 

“does not include any active components such as switching nodes, gateways, routers, or bridges”) 

seems to be a gross misreading of this portion of the specification. But Dell has it exactly opposite—

the specification describes that the communication network KN (which the “bus system” is a preferred 

embodiment) can include “active components such as switching nodes, gateways, routers, [or]

bridges.” Id. at 2:29-32.

Third, Dell arbitrarily interjects the notion of “wherein all nodes are connected to a single 

wire.” There is no suggestion in the claims in the specification that “nodes [be] connected to a 

single wire.” Indeed, the word “wire” and “single wire” are not recited in the specification. It is 

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 10 of 13
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also unclear what Dell means by “connected to a single wire.” For instance, if a wire is cut into 

multiple segments, but then reconnected, would Dell consider the wire “single”? And what does 

Dell consider a “wire”? For multi-conductor wiring (such as twisted-pair wiring), does Dell 

maintain that the wiring is “single”? Ultimately, Dell’s construction appears to be driven from a 

desire to avoid infringement and would only confuse the jury. Both notions have no place in a 

principled construction.

III. U.S. Patent No. 8,913,489 (Case No. 6:20-cv-00477) Claim Terms

3. “the first set of port interfaces of the multi-chassis link aggregate” 

(Claims 1, 8, 15)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite2

This term should be given its plain and ordinary meaning. In each of Claims 1, 8, and 15, 

the claim language itself provides the full context and antecedent basis for this term. In Claim 1, 

the preamble recites “An aggregation switch in a multi-chassis system, comprising...”, and the 

first limitation recites “a first set of member port interfaces of the aggregation switch grouped with 

one or more member port interfaces of a remote aggregation switch configured to form a multichassis link aggregate...” ’489 patent, 22:33-38 (emphasis added). Thus, this term refers to the 

first set of member port interfaces of the aggregation switch which are configured to form a multi2 Defendants filed a petition for inter partes review involving the ’489 patent in IPR2021-

00272, and in Defendants’ petition, they argue that all claims of the ’489 patent are either 

anticipated or rendered obvious, and Defendants purport to map alleged prior art references 

against each of the elements of all claims of the ’489 patent. See e.g. IPR2021-00272, 

Petition (Paper 2), at 7. Furthermore, Defendants in the same petition argue that “no formal 

claim constructions [are] necessary.” Id. at 17. Defendants’ petition found all claim terms of 

the ’489 patent to be sufficiently definite to map alleged prior art references onto the claim 

language. For example, Defendants’ petition argues that certain reference(s) disclose “the 

first set of port interfaces of the multi-chassis link aggregate.” See e.g., Id. at 27. Thus in at 

least IPR2021-00272, Defendants have demonstrated that this term is not indefinite. Enzo 

Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 2010) (“As a preliminary 

matter, we observe that a claim cannot be both indefinite and anticipated.”).

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 11 of 13
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chassis link aggregate with a remote aggregation switch, as opposed to “a second set of port 

interfaces” in the second element (see Id., 22:41-42). 

This is the same result for this term in Claims 8 and 15. Claim 8 recites in its first element 

“a first set of port interfaces in the switch, wherein the first set of ports are configured to form a 

multi-chassis link aggregate...” Id., 23:27-31 (emphasis added). Claim 15 recites “a first set of 

port interfaces in the switch wherein the first set of ports are configured to form a multi-chassis 

link aggregate...” Id., 24:20-24 (emphasis added). Each of Claims 1, 8, and 15 provides the context 

and antecedent basis for this term, and no construction is necessary. 

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 12 of 13
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Dated: February 17, 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

Brian M. Koide

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 

Brian@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 the U.S. District Court [LIVE]- Document Filing System to all counsel of record on February 

17, 2021.

/s/ James L. Etheridge

James L. Etheridge 

Case 6:20-cv-00477-ADA Document 80 Filed 02/17/21 Page 13 of 13