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., AND EMC CORPORATION, 

Defendants.

Case No. 6:20-cv-00473-ADA

Case No. 6:20-cv-00478-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF REGARDING 

PATENT NOS. 9,137,144 & 7,126,921

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 1 of 12
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TABLE OF CONTENTS

Page

DISPUTED TERMS FROM THE ’921 PATENT............................................................ 1

A. “fast propagation” (Claims 1, 9, & 17)....................................................................1

1. The term “fast propagation” is indefinite......................................................... 2

2. In the alternative, “fast propagation” at least requires propagation that is faster 

than OSPF............................................................................................................... 3

B. “data plane means for forwarding packets between the nodes” (Claim 1) / 

“data plane means for forwarding packets to other nodes in the network” 

(Claims 9 & 17) .......................................................................................................3

DISPUTED TERMS FROM THE ’144 PATENT............................................................ 4

A. “group of communication traffic” (claims 1, 4, 11, 12, 14).....................................4

B. “V is a group identifier corresponding to the group of communication 

traffic” (claims 1, 11, 14).........................................................................................5

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 2 of 12
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TABLE OF AUTHORITIES

Page(s)

Cases

Cardiac Pacemakers, Inc. v. St. Jude Med., Inc.,

296 F.3d 1106 (Fed. Cir. 2002)..................................................................................................1

Godo Kaisha IP Bridge I v. Micron Tech., Inc.,

6:20-cv-178, D.I. 71 (W.D. Tex. Dec. 9, 2020).........................................................................5

Interval Licensing LLC v. AOL, Inc.,

766 F.3d 1364 (Fed. Cir. 2014)..............................................................................................2, 3

JVW Enters, Inc. v. Interact Accessories,

424 F. 3d 1324 (Fed. Cir. 2005).................................................................................................1

LBS Innovations, LLC v. Apple Inc.,

No. 19-0119-JRG-RSP, 2020 WL 1929423 (E.D. Tex. Apr. 20, 2020)....................................3

Microsoft Corp. v. Commonwealth Sci. & Indus. Rsch. Org.,

572 F. Supp. 2d 786 (E.D. Tex. 2008).......................................................................................1

Poly-Am. L.P. v. API Indus., Inc.,

839 F.3d 1131 (Fed. Cir. 2016)..................................................................................................6

Solas OLED Ltd. v. Google, Inc.,

6:19-cv-515, D.I. 17 (W.D. Tex. Aug. 30, 2020) ......................................................................5

Sun Coast Merch. Corp. v. CCL Prod. Enterprises, Inc.,

No. CV 01-0772 GHK RNBX, 2003 WL 25299412 (C.D. Cal. May 1, 2003).........................1

Weatherford Int’l, Inc. v. Halliburton Energy Servs., Inc.,

No. 2:09-CV-261-CE, 2011 WL 3439323 (E.D. Tex. Aug. 5, 2011)........................................1

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 3 of 12
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TABLE OF ABBREVIATIONS

Abbreviation Term/Document(s)

’144 patent U.S. Patent No. 9,137,144

’921 patent U.S. Patent No. 7,126,921

DefBr. Defendants’ Responsive Claim Construction Brief (Case 

No. 6:20-cv-00473-ADA, Dkt. 77; Case No. 6:20-cv00478-ADA, Dkt. 88)

m-p-f means-plus-function

PlBr. WSOU’s Opening Claim Construction Brief (Case No. 

6:20-cv-00473-ADA, Dkt. 74; Case No. 6:20-cv-00478-

ADA, Dkt. 85)

POSA Person of skill in the art

ReplyBr. WSOU’s Reply Claim Construction Brief (Case No. 

6:20-cv-00473-ADA, Dkt. 79; Case No. 6:20-cv-00478-

ADA, Dkt. 90)

VLAN Virtual Local Area Network

WSOU WSOU Investments, LLC D/B/A Brazos Licensing and 

Development

Emphasis added unless indicated otherwise.

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 4 of 12
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DISPUTED TERMS FROM THE ’921 PATENT

A. “fast propagation” (Claims 1, 9, & 17)

WSOU fails in its reply to provide any objective basis—let alone an objective basis found 

in the intrinsic record—to determine whether an accused product meets the “fast propagation” 

limitation found in all the claims. Instead, WSOU tries to avoid the issue altogether, arguing that 

it is “improper” for the Court to even consider the indefiniteness of functional claim language if it 

happens to appear in a m-p-f limitation. ReplyBr. 1 (citing JVW Enters., Inc. v. Interact 

Accessories, 424 F. 3d 1324, 1331 (Fed. Cir. 2005)). Of course, this is not true. WSOU’s novel 

position has been squarely rejected by the Federal Circuit, which has held that “[o]rdinary

principles of claim construction govern interpretation of the claim language used to describe the 

function” of a m-p-f term. Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1113 

(Fed. Cir. 2002). Thus, like any other term, “fast propagation”—even though part of the function 

of a m-p-f term—is subject to claim construction and must satisfy Section 112 ¶ 2. Consistent 

with this incontrovertible Federal Circuit dictate, courts regularly consider indefiniteness and 

construe the functions of m-p-f terms. See, e.g., Microsoft Corp. v. Commonwealth Sci. & Indus. 

Rsch. Org., 572 F. Supp. 2d 786, 805 (E.D. Tex. 2008) (considering indefiniteness of “‘significant 

ones of non-direct transmission paths’ term, which appears in the modulation means function”); 

Weatherford Int’l, Inc. v. Halliburton Energy Servs., Inc., No. 2:09-CV-261-CE, 2011 WL 

3439323, at *8 (E.D. Tex. Aug. 5, 2011) (construing function for “means for retaining” to be 

limited beyond the plain language); Sun Coast Merch. Corp. v. CCL Prod. Enters., Inc., No. CV 

01-0772 GHK RNBX, 2003 WL 25299412, at *8 (C.D. Cal. May 1, 2003) (narrowly construing 

function for “dampening means”).

WSOU also repeats its incorrect assertion that Defendants’ agreements regarding 

corresponding structure of certain m-p-f terms are “concessions” that fast propagation is not 

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 5 of 12
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indefinite. See ReplyBr. 1; PlBr. 3–4. To the contrary, that the parties were able to agree that the 

fact that the specification links structures to these functions does not mean that the function itself 

is sufficiently definite. It means only that the specification clearly—in this case, explicitly—links 

the claimed function to specific structures. See, e.g., ’921 patent, 4:1-4 (“The means for fast 

propagation of node related information comprises a switching fabric and a link interface, wherein 

the link interface comprises a Fast Link State processor (FLSP) and a link failure database.”).

1. The term “fast propagation” is indefinite

WSOU does not dispute that “fast propagation” of node related information and link state 

information are terms of degree. While “mathematical precision” is not required (see ReplyBr. 2 

(quoting Invitrogen)) “it is not enough . . . to identify ‘some standard for measuring the scope of 

the phrase.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370–71 (Fed. Cir. 2014). 

Rather, “claims, when read in light of the specification and the prosecution history, must provide 

objective boundaries for those of skill in the art.” Id. The ’921 patent fails to do so. And, WSOU 

does not even attempt to argue that the patent provides objective boundaries for “fast propagation.”

Rather, WSOU asserts that these functions are not indefinite because “[t]he specification 

teaches that ‘fast’ is the propagation speed based on the corresponding application of the 

invention.” ReplyBr. 1–2 (citing ’921 patent, Abstract & 3:1–5). Even that nonsensical statement 

does not provide any clarity as to what “fast” means: WSOU is saying that “fast” refers to the 

speed of propagation, but still fails to provide any measure by which a person skilled in the art is 

supposed to determine whether a particular application is “fast”—and therefore inside the scope 

of the claims—or not. WSOU’s citations do not even use the words “fast propagation,” let alone 

provide any objective boundaries of what it means in these claims to be “fast.” 

This is in stark contrast to the LBS case cited by WSOU. In LBS, the court found that 

“quickly” was not indefinite because a POSA could “objectively evaluate the ‘quickly’ phrase 

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 6 of 12
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when read in light of [six] separately construed and/or agreed terms.” LBS Innovations, LLC v. 

Apple Inc., No. 19-0119-JRG-RSP, 2020 WL 1929423, at *29 (E.D. Tex. Apr. 20, 2020); see id.

at *27–29. The ’921 patent contains no such contextual information. This is a textbook case of a 

subjective limitation that depends on the “unpredictable vagaries of any one person’s opinion.”

Interval Licensing, 766 F.3d at 1371. Thus, the court should find “fast propagation” indefinite. 

2. In the alternative, “fast propagation” at least requires propagation that is 

faster than OSPF

As previously addressed, the only guidance (albeit insufficient) for how fast “fast 

propagation” must be, is that it is faster than propagation through the computing means (i.e., by 

using OSPF). Resp. Br. 9–11. WSOU does not identify any other support for an objective measure 

other than the reference to the speed of OSPF. WSOU’s only argument against this alternative 

construction is that under Phillips a patent cannot be limited to its sole embodiment. See ReplyBr.

2–3. Defendants do not seek to limit the claims to any embodiment. Instead, the only statement 

that actually provides any contours as to the meaning of “fast” happens to be in the discussion of 

the sole embodiment. Thus, if a person skilled in the art could derive any meaning for the term 

“fast propagation” it would be that it is in relation to the speed of the conventional method of 

propagation (i.e., OSPF) on which that the patent sought to improve. If, however, these disclosures 

do not provide guidance—as WSOU asserts—then the claims are indefinite.

B. “data plane means for forwarding packets between the nodes” (Claim 1) / 

“data plane means for forwarding packets to other nodes in the network” 

(Claims 9 & 17)

Rather than respond to Defendants’ actual arguments, WSOU’s Reply largely just repeats 

verbatim its opening brief arguments. Compare PlBr. 4–5 with ReplyBr. 3. WSOU thus ignores 

the many citations Defendants identified that make clear that (1) the “computing means” and “data 

plane means . . .” are separate and distinct structures and (2) switching fabric 214 and link interface 

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 7 of 12
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216 are contained within data plane 202—thus data plane 202 is necessary to perform the claimed 

function. See DefBr. 12–13. Indeed, the entire purpose of the ’921 patent—from front to back—

is to send link state information through the data plane rather than through the computing plane. 

Id. WSOU nonetheless seeks to literally delete the words “data plane” from the claims by 

eliminating them from the definition of “data plane means.” WSOU’s inability—or 

unwillingness—to respond to Defendants’ arguments demonstrates that its construction has no 

basis. The “data plane means . . .” should be thus construed to require “data plane 202,” which is 

distinct from the “computing means.”

DISPUTED TERMS FROM THE ’144 PATENT

A. “group of communication traffic” (claims 1, 4, 11, 12, 14)

Defendants’ proposed construction is mandated by the intrinsic record. DefBr. 2–4. 

Indeed, WSOU appears to agree that the claimed “group of communication traffic” must be 

identifiable. ReplyBr. 4. Defendants’ construction is necessary to prevent a jury from considering 

packets that have nothing to do with each other as a “group” simply because they happen to be 

sent from, or to, the same place. Indeed, in discussing the other disputed term in the ’144 patent, 

WSOU appears to agree that traffic that happens to travel from the same source to the same 

destination is not the type of “group of communication traffic” with which the claim is concerned. 

ReplyBr. 6 (“[T]he applicant focused on the disclosure of Matthews noting that the particular 

source address and destination address disclosed in Matthews ‘fails to even remotely suggest 

traffic.’”). WSOU also argues that, when the specification says, “VLAN (or other identifiable 

communications group),” that somehow means that non-identifiable communications should be 

captured by the claims. This makes no sense because the statement clearly contemplates that the 

groups traffic to which the invention applies is either a VLAN or an “other identifiable

communications group.” As such, the term should be construed to require an identifiable group.

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 8 of 12
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WSOU also complains that VLAN should not be in the construction as it is merely 

exemplary. ReplyBr. 4. To the contrary, it is common to include examples as part of a construction 

to help jury understanding, as this Court often does. See, e.g., Godo Kaisha IP Bridge I v. Micron 

Tech., Inc., 6:20-cv-178, D.I. 71 (W.D. Tex. Dec. 9, 2020) (construing “a memory storage portion” 

as “a portion of a semiconductor device that includes at least a storage element (e.g., a capacitor) 

and access circuitry (e.g., a transistor) that together form a memory”); Solas OLED Ltd. v. Google, 

Inc., 6:19-cv-515, D.I. 17 (W.D. Tex. Aug. 30, 2020) (construing “active elements” as “circuit 

elements that have gain or that direct current flow, e.g., transistors”).

B. “V is a group identifier corresponding to the group of communication traffic” 

(claims 1, 11, 14)

WSOU desperately tries to avoid the undeniably limiting arguments made during 

prosecution, in which applicant repeatedly and unmistakably distinguished the claims from a “hash 

value” that is based on the packet header such as the source and destination address. ReplyBr. 4–

6. In its efforts, WSOU faults Defendants for relying on more than one amendment in the file 

history, rather than just focusing on the amendment that was the subject of Defendants’ motion to 

dismiss. Id. 4–5. This is nonsense; that there are multiple separate amendments in which applicant 

clearly distinguished hash values from the claims only strengthens Defendants’ arguments.

WSOU also argues that Defendants use “selective snippets and misleading paraphrasing” 

in its argument. ReplyBr. 5. That is also untrue. When the entire paragraphs from which 

Defendants quoted are laid bare in WSOU’s brief, it only becomes more apparent that applicant 

unambiguously distinguished the claims from a “hash value” that “corresponds to a source address 

or a destination address.” DefBr., Ex. 1 at 6. All that is necessary to arrive at Defendants’ 

construction is to read the block quote from the November 18, 2014 Amendment on page 5 of 

WSOU’s Reply. There, applicant repeats—over and over in clear terms—that a hash value 

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 9 of 12
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corresponding to packet headers like source and destination address does not meet the claims. 

Even if disavowal were required to construe the claim consistent with the specification and the 

prosecution history—it is not—it is difficult to imagine a more explicit disavowal of claim scope 

than applicant’s arguments during prosecution.

WSOU tries to limit the scope of applicant’s disclaimer by arguing that “applicant did not 

disavow categorically that the group identifier cannot be a hash value based on all source addresses 

and destination addresses but merely noted how the disclosure in Matthews was lacking.” 

ReplyBr. 6. That is incorrect. Applicant explicitly distinguished between “performing a hashing 

function on the fields in the packet 200, such as the source address field 202 and the destination 

address field 204,” on the one hand, and the claimed “a group identifier corresponding to a group 

of communication traffic,” on the other hand. DefBr., Ex. 1 at 6. This statement conveys more 

than just a distinction over the specific system disclosed in Matthews. Instead, it clearly 

distinguishes the claims from any similar system that uses a hash value from packet header fields 

like source and destination address. Indeed, the disavowal here is even clearer than in Poly-Am.

L.P. v. API Indus., Inc., where the Federal Circuit found a clear and unmistakable disavowal of 

“short seals that do not extend inwardly” even though applicant did not use that language in the 

prosecution history. 839 F.3d 1131, 1137 (Fed. Cir. 2016). The two cases WSOU cites are not 

relevant as the statements made during prosecution in those cases were not clear and not consistent 

with the specification, as they are in this case. See ReplyBr. 6. Since the prosecution history 

arguments here are clear, the claims should be construed to be consistent with those arguments.1

1 WSOU alleges infringement based on precisely the same type of hash function on packet header 

fields that was distinguished. DefBr. Ex. 2 at 3. While the claims should not be construed by 

reference to an accused device—and Defendants do not seek to do so—they must be construed 

consistent with the arguments made during prosecution. WSOU should be prohibited from taking 

a position in litigation contrary to that taken during prosecution. See DefBr. 6 (collecting cases). 

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 10 of 12
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Dated: April 14, 2021 By: Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@sheltoncoburn.com

SHELTON COBURN LLP

311 RR 620, Suite 205

Austin, TX 78734-4775 

Telephone: 512.263.2165

Facsimile: 512.263.2166 

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

Kyanna Sabanoglu

ksabanoglu@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 11 of 12
CERTIFICATE OF SERVICE

The undersigned certifies that on April 14, 2021, all counsel of record who are deemed to 

have consented to electronic service are being served with a copy of this document through the 

Court’s CM/ECF system under Local Rule CV-5(b)(1). 

/s/ Barry K. Shelton

Barry K. Shelton 

Case 6:20-cv-00473-ADA Document 82 Filed 04/14/21 Page 12 of 12