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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.

§

§

§

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION 6:20-CV-00480-ADA

CIVIL ACTION 6:20-CV-00481-ADA

CIVIL ACTION 6:20-CV-00485-ADA

CIVIL ACTION 6:20-CV-00486-ADA

PATENT CASE

JURY TRIAL DEMANDED

PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 1 of 34
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TABLE OF CONTENTS

I. U.S. Patent No. 7,092,360 (Case No. 6:20-cv-00486-ADA)................................................. 1

A. Disputed terms for which Dell only seeks construction.............................................. 1

1. “said element comprises: an element for recording whether a queue is empty or 

occupied, an element for recording the [number of data cells/quantity of data] 

contained in a queue, an element identifying a queue from which data is to be 

output, and an element identifying a group of queues from which data is to be 

output” (claims 1, 26) .......................................................................................................1

2. “predetermined state for said element” (claim 1) “expected state for said 

element” (claims 3, 26, 29) “expected status for said element” (claim 12, 24) 

“expected state of said first element” (claim 13, 37) “expected value of said 

parameter” (claim 18) “expected states for that element” (claim 21)...............................2

3. “computer generated model” (claims 1, 18, 21, 26, 44, 45)..............................................3

B. Dell errs in seeking to construe certain terms which recite “means for” as invoking 

means-plus-function construction under § 112, ¶ 6.................................................... 4

4. “detection means for detecting a state of an element of said scheduler” (claims 

1, 18) .................................................................................................................................6

5. “comparing means for comparing the detected state with a predetermined state 

for said element and for outputting the result of the comparison” (claim 1)....................8

6. “determining means for determining an expected value of said parameter based 

on the detected state of said element” (claim 18) ...........................................................10

C. Dell errs in seeking to construe certain terms which do not recite the word 

“means” as invoking means-plus-function construction under § 112, ¶ 6.............. 11

7. “element for recording whether a queue is empty or occupied” (claim 1) .....................12

D. Dell violates the Court’s Order in seeking to construe additional terms in excess of 

the ordered limit of 36 total terms.............................................................................. 13

i. “an element for recording the number of data cells contained in a queue” (claim 

1, 20) ...............................................................................................................................14

ii. “an element for recording the number of cells contained in a queue” (claim 9, 

30, 35, 38) .......................................................................................................................14

iii. “an element for recording the quantity of data contained in a queue” (claim 26) ..........14

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 2 of 34
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iv. “an element identifying a queue from which data is to be output” (claims 1, 

26) ...................................................................................................................................15

v. “an element identifying a group of queues from which data is to be output” 

(claims 1, 26) ..................................................................................................................15

II. U.S. Patent No. 7,539,133 (Case No. 6:20-cv-00480-ADA)............................................... 17

1. “whether a congestion condition exists [on/for] the egress node” (claims 1, 12, 

and 13) ............................................................................................................................17

2. “processing the packets” (claims 1, 12, and 13) .............................................................17

3. “such that packets associated with egress nodes for which the congestion 

condition does not exist have a different queuing priority within the load 

balancing network than packets associated with egress nodes for which the 

congestion condition exists” claims 1, 12, and 13).........................................................19

4. “means for determining an egress node associated with each of a plurality of 

packets of a traffic flow received at an ingress node” (claim 12)...................................20

5. “means for processing the packets such that packets associated with egress 

nodes for which the congestion condition does not exist have a different 

queuing priority within the load-balancing network than packets associated 

with egress nodes for which the congestion condition exists” .......................................22

III. U.S. Patent No. 7,636,309 (Case No. 6:20-cv-00485-ADA)............................................... 23

1. “split ratio vector” (claims 1, 11, 16)..............................................................................23

IV. U.S. Patent No. 9,164,800 (Case No. 6:20-cv-00481-ADA)............................................... 25

1. “latency cost” (claims 1, 13) ...........................................................................................25

2. “[determining/determine] an assignment objective” (claims 1, 13)................................26

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 3 of 34
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TABLE OF AUTHORITIES

Cases

Acromed Corp. v. Sofamor Danek Group,

253 F.3d 1371 (Fed. Cir. 2001)................................................................................................... 5

Al-Site Corp. v. VSI Intern., Inc.,

174 F.3d 1308 (Fed. Cir. 1999)................................................................................................. 11

Cole v. Kimberly-Clark Corp.,

102 F.3d 524 (Fed. Cir. 1996)................................................................................................... 12

Comark Comm’ns, Inc. v. Harris Corp.,

156 F.3d 1182 (Fed.Cir.1998)........................................................................................... 1, 2, 20

Cont’l Circuits LLC v. Intel Corp.,

915 F.3d 788, 796–97 (Fed. Cir.)...........................................................................3, 4, 17-19, 25

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

258 F.3d 1317 (Fed. Cir. 2001)..............................................................................3, 4, 18-19, 25

Dippin’ Dots, Inc. v. Mosey,

476 F.3d 1337 (Fed. Cir. 2007)................................................................................................... 1

Eko Brands, LLC v. Adrian Rivera Maynez Enterprises, Inc.,

946 F.3d 1367 (Fed. Cir. 2020)................................................................................................. 26

Liebel-Flarsheim Co. v. Medrad, Inc.,

358 F.3d 898 (Fed. Cir. 2004)..................................................................................................... 3

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

194 F.3d 1250 (Fed. Cir. 1999)............................................................................................. 5, 21

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)..........................................................................................2-4, 17

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

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

Rodine PLC v. Seagate Tech., Inc.,

174 F.3d 1294 (Fed. Cir. 1999)................................................................................................... 7

Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC,

962 F.3d 1362 (Fed. Cir. 2020)................................................................................................... 6

Technology Properties Limited LLC v. Huawei Technologies Co., Ltd.,

849 F.3d 1349 (Fed. Cir. 2017)........................................................................................... 20, 27

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 4 of 34
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TriMed, Inc. v. Stryker Corp.,

514 F.3d 1256 (Fed. Cir. 2008)............................................................................................... 5, 7

Statutes

35 U.S.C. § 112...................................................................................................................... passim

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Plaintiff WSOU Investments, LLC d/b/a Brazos License and Development (“WSOU”)

submits the following opening claim construction brief. 

I. U.S. Patent No. 7,092,360 (Case No. 6:20-cv-00486-ADA)

A. Disputed terms for which Dell only seeks construction

1. “said element comprises: an element for recording whether a queue is 

empty or occupied, an element for recording the [number of data 

cells/quantity of data] contained in a queue, an element identifying a 

queue from which data is to be output, and an element identifying a 

group of queues from which data is to be output” (claims 1, 26)

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “said element includes all of: an element for 

recording whether a queue is empty or occupied, an 

element for recording the quantity of data contained 

in a queue, an element identifying a queue from 

which data is to be output, and an element identifying 

a group of queues from which data is to be output”

Under the plain and ordinary meaning, use of the transitional term “comprises” signals that 

“said element” includes, but is not limited to, “an element for recording whether a queue is empty 

or occupied, an element for recording the [number of data cells / quantity of data] contained in a 

queue, an element identifying a queue from which data is to be output, and an element identifying 

a group of queues from which data is to be output.” Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 

1343 (Fed. Cir. 2007).

While Dell appears to agree with this straightforward understanding of the transitional 

“comprises” term, Dell has yet to explain why it would be proper here to conflate together what 

the claims expressly differentiate. Claims 1 and 26 are expressly differentiated at least in that 

claim 1 recites “said element comprises . . . an element for recording the number of data cells

contained in a queue,” while claim 26 recites “said element comprises . . . an element for recording 

the quantity of data contained in a queue.” Notwithstanding this explicit differentiation, Dell 

seeks to construe “the number of data cells” (recited in claim 1) to have the same meaning and 

scope as “the quantity of data” (recited in claim 26). This is presumptively incorrect. See Comark 

Comm’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed.Cir.1998) (“There is presumed to be a 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 6 of 34
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difference in meaning and scope when different words or phrases are used in separate claims.”); 

see also Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc) cert. denied, 546 

U.S. 1170 (2006); (“Differences among claims can also be a useful guide in understanding the 

meaning of particular claim terms.”) (citation omitted). The patentee’s word choice should control 

here; and no construction is required apart from plain and ordinary meaning.

2. “predetermined state for said element” (claim 1)

“expected state for said element” (claims 3, 26, 29)

“expected status for said element” (claim 12, 24)

“expected state of said first element” (claim 13, 37)

“expected value of said parameter” (claim 18)

“expected states for that element” (claim 21)

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “a [state/value] for the [element/parameter] that would 

be expected if the scheduler is functioning properly”1

Dell does not purport to define any word recited in any of the above six phrases it identified 

for construction, apart from suggesting that “predetermined” and “expected” are interchangeable 

in meaning and scope. One of the six phrases Dell identified does not recite “expected” but rather 

recites “predetermined state for said element.” Dell suggests “expected” and “predetermined” are 

interchangeable in this context by offering a universal construction that employs, but does not 

purport to define, the same “expected” word for each of the above six phrases. Because the claims 

expressly differentiate between “expected” and “predetermined” (e.g., claim 1 recites “a 

predetermined state” and claim 3, depending therefrom recites “an expected state”), Dell’s 

universal construction is presumptively incorrect. Comark, 156 F.3d at 1187. 

Dell compounds its error by seeking to add an extraneous condition, “if the scheduler is 

functioning properly.” This would violate the proscription against adding a limitation that is 

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

prosecution history. See, e.g., Cont’l Circuits LLC v. Intel Corp., 915 F.3d 788, 796–97 (Fed. 

1 In overt violation of the Court’s order that the parties limit the terms offered for Court 

construction to a total of no more than thirty-six terms, Dell improperly groups together each of 

these six distinct terms as collectively providing only a single count. 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 7 of 34
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Cir.), cert. denied, 140 S. Ct. 648 (2019); Dayco Prods., Inc. v. Total Containment, Inc., 258 F.3d 

1317, 1327 (Fed. Cir. 2001). The claim language in question is agnostic as to whether a given 

“expected” state or value indicates that the scheduler itself is functioning properly. While this may

be what a given “expected” state or value can possibly indicate in certain embodiments, nothing 

in the claim language or the remainder of the intrinsic evidence compels importing this as a 

universal requirement for each of the six phrases Dell alone seeks to construe.2

The error of such an improper rewrite is underscored by comparing claims 1 and 3. Claim 

1 recites, in part, “comparing the detected state with a predetermined state for said element and for 

outputting the result of the comparison.” Claim 3, which depends from claim 1, includes the 

requirement, “monitoring a parameter relating to the operation of said scheduler, and determining 

means for determining an expected state for said element based on said monitored parameter.” 

Dell’s construction would render superfluous at least the recitation in claim 3 that the “parameter” 

must “relat[e] to the operation of said scheduler.” This is because, according to Dell, the 

“expected” qualifier itself necessitates that the parameter relate to “the scheduler . . . functioning 

properly.” It is well established that “interpretations that render some portion of the claim language 

superfluous are disfavored” and presumptively incorrect. Power Mosfet Techs., L.L.C. v. Siemens 

AG, 378 F.3d 1396, 1410 (Fed. Cir. 2004).

3. “computer generated model” (claims 1, 18, 21, 26, 44, 45) 

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “a simulated computer model of circuitry 

describing a scheduler”

The phrase “computer generated model” recites straightforward words that require no 

construction. It is, quite simply, a model generated by a computer. In identifying this term for 

2 Even if the ’360 patent specification disclosed only a single embodiment of “expected” states or 

values, which is not the case, the Federal Circuit has “expressly rejected the contention that if a 

patent describes only a single embodiment, the claims of the patent must be construed as being 

limited to that embodiment.” Cont’l Circuits LLC v. Intel Corp., 915 F.3d 788, 797 (Fed. Cir.), 

cert. denied, 140 S. Ct. 648, (2019) (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. 

Cir. 2005) and citing Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004)).

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 8 of 34
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construction, Dell does not purport to define any of the recited words. Rather, Dell seeks to rewrite 

the phrase as “a simulated computer model of circuitry describing a scheduler.” Dell’s proposed 

construction should be rejected as violating the proscription against adding limitations that are 

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

prosecution history. See, e.g., Cont’l Circuits 915 F.3d at 796–97; Dayco, 258 F.3d at 1327. 

The specification proscribes importing Dell’s proposed construction as a claim limitation 

by stating, “[i]n any of the embodiments described above, the scheduler may be implemented as a 

simulated computer model of circuitry describing a scheduler.” ’360 patent, 12:11−13. Here, use 

of the word “may” confirms that the scheduler is not necessarily implemented as a similar 

computer model of circuitry describing a scheduler. Notwithstanding this language unmistakably 

signaling a non-limiting example, Dell commits the “cardinal sin” of importing this statement as a 

claim limitation. Phillips v. AWH Corp., 415 F.3d 1303, 1320 (Fed. Cir. 2005) (it is a cardinal sin

of patent law to read a limitation from the specification into the claims).

It is also significant that certain claims direct limitations to the “computer generated model”

including, for example, in terms of its content or structure. Claim 44, for example, recites “[a] 

method as claimed in claim 26, wherein said computer generated model comprises a file containing 

a functional description of said element.” As another example, claim 45 recites, “[a] method as 

claimed in claim 26, wherein said computer generated model is described in a programming 

language from which the scheduler can be synthesized.” These examples confirm that when the 

term “computer generated model” is to be interpreted as limiting in terms of content or structure, 

the claims specifically say so. For this additional reason, Dell’s improper rewrite of this term 

should be rejected as inconsistent with the intrinsic evidence.

B. Dell errs in seeking to construe certain terms which recite “means for” as 

invoking means-plus-function construction under § 112, ¶ 6

Dell errs in seeking a means-plus-function construction for three terms which are all 

expressly tied to a claimed “monitor” as the corresponding structure and therefore do not invoke 

pre-AIA 35 U.S.C. § 112, ¶ 6. Because the three “terms” at issue recite the word “means,” a 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 9 of 34
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rebuttable presumption arises that the terms invoke means-plus-function construction. 

Nevertheless, “the presence of the word ‘means’ and the articulation of a function is not the end 

of the inquiry.” TriMed, Inc. v. Stryker Corp., 514 F.3d 1256, 1259–60 (Fed. Cir. 2008). “If, in 

addition to the word ‘means’ and the functional language, the claim recites sufficient structure for 

performing the described functions in their entirety, the presumption of § 112 ¶ 6 is overcome.” 

Id. In TriMed, for example, the Circuit found recitation of sufficiently definite structure by the 

recitation of a “means for” term in the context of functionality provided by “holes”—i.e., the 

claimed “holes” provided sufficiently definite structure for the “means for” term that followed. Id. 

For each of the “means for” terms Dell identifies, its means-plus-function interpretation 

fails at the outset of the analysis because each term at issue is expressly recited in the context of a 

“monitor” having the claimed “means for” operation. For example, independent claim 24 recites 

“a monitor having means for detecting the state of at least one element of said scheduler.” Here, 

the claim language itself contains sufficiently definite structure by reciting the admittedly 

structural term “monitor” followed by an operation (“detecting the state of at least one element of 

said scheduler”) that the “monitor” must be configured to perform. TriMed, 514 F.3d at 1259–60.

Dell compounds its error in its application of a means-plus-function analysis. For example, 

Dell offers restatements of alleged functional language that departs from what is recited. Dell also 

errs in seeking to import into the claim structural limitations from the written description that are 

not unambiguously required to perform the alleged function. 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. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999) (“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.”). If the Court is 

inclined to find the identified “means for” terms invoke § 112 ¶ 6, only WSOU has offered a viable 

construction (in the alternative to no construction).

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4. “detection means for detecting a state of an element of said scheduler” 

(claims 1, 18)3

WSOU’s Position Dell’s Position

No construction required apart from finding 

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

Alternatively, if deemed subject to 35 U.S.C. 

§ 112, ¶ 6, then,

Function: detecting a state of an element of 

said scheduler; 

Structure: monitor having the claimed 

functionality.

This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: detecting a state of an element

Structure: modules 110, 112, 114 . . . to 130 

using a programming language interface (PLI) 

as described in ’360 patent, 12:11–41

Independent claims 1 and 18 each recite the disputed phrase in the more fulsome context, 

“[a] monitor for monitoring the operation of a scheduler for controlling the departure of data cells, 

comprising detection means for detecting a state of an element of said scheduler.” In both 

instances, the “detection means” is expressly recited as being provided by the “monitor,” an 

admittedly structural term. The “detection means” expressly limits the “monitor” structure in 

terms of a specific operational requirement (i.e., detecting a state of an element of said scheduler). 

The “monitor” is further structurally described in terms of its interrelationship with a “scheduler.” 

Those limiting, structural terms are “essential to understanding the structural limitations” of the 

“detection means” at least because the “monitor” and “scheduler” are structurally linked to one 

another (i.e., “[a] monitor for monitoring the operation of a scheduler”) and provide antecedent 

basis for “said scheduler.” See Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 

F.3d 1362, 1368 (Fed. Cir. 2020). Independent claim 24 recites “a monitor having means for 

detecting the state of at least one element of said scheduler.” Like claims 1 and 18, therefore, 

3 Dell has taken the position that resolution of the dispute over the same phrase recited in claims 1 

and 18 would somehow resolve unraised disputes concerning “means for requesting said scheduler 

model to pass the status of said element to said monitor” (claim 1) and “monitoring means for 

monitoring a parameter relating to the operation of said scheduler” (claim 3). In complying with 

the Court’s order that Dell limit the number of terms it seeks to construe, Dell opted to not identify 

those distinct phrases. Dell should not be permitted to creatively circumvent the Court’s order 

limiting the number of disputed terms by erroneously conflating into one multiple distinct terms, 

particularly where some of those distinct terms recited in the same claim 1. 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 11 of 34
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claim 24 expressly ties its “means for detecting” term to the “monitor” structure and structurally 

interrelates the “monitor” and “scheduler” to one another. 

The presumption arising from the word “means” is also rebutted by party admission. Dell 

admitted through counsel (during a telephonic meet and confer) that the specification discloses a 

“monitor” as structure corresponding to the “detecting a state of an element of said scheduler.” 

Moreover, the various “modules” Dell identifies as corresponding structure for this term are 

described in the ’360 patent as provided by an embodiment of monitor 107. Id., 6:62−64 

(“Referring to FIG. 2, the embodiment of the scheduler monitor includes a plurality of modules 

110, 112, 114. . . to 130[.]”). Dell’s party admission that the disclosed monitor is itself

corresponding structure is significant because the claim language at issue recites the “monitor” as 

comprising or having the claimed “detection means” and therefore operationally capable of 

performing the alleged functional language. It follows that the claim language itself admittedly 

recites sufficient corresponding structure to overcome the presumption that § 112, ¶ 6 applies. See

TriMed, 514 F.3d at 1259–60; see also Rodine PLC v. Seagate Tech., Inc., 174 F.3d 1294, 1302 

(Fed. Cir. 1999) (instructing that if the claim recites sufficient structure or materials for performing 

the stated function, then the presumption that § 112, ¶ 6 applies is overcome).

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the acknowledged corresponding structure recited in the claim language itself, 

then the function and corresponding structure from the specification should be interpreted 

according to the alternative construction set forth in the table above. This alternative construction 

is intended to encompass at least the following exemplary embodiments of a “monitor” as claimed: 

monitors 7 and 107 (e.g., 6:22−7:3); modules 110, 112, 114 . . . to 130 (e.g., 6:50−7:28); rules 134 

(e.g., 6:33−37; 7:28−37); a rule checker (e.g., 6:37−44; 7:28−48); a programming language 

interface (PLI) implementation of rules; (e.g., 9:16−21, 9:57−63, 10:29−32, 11:9−12, 12:11−41); 

etc. This non-exhaustive list of exemplary disclosure encompasses various embodiments and, 

consequently, it is not offered as a comprehensive set of requirements which must all be met if the 

Court were to apply a means-plus-function construction. 

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Dell’s misapplication of a means-plus-function construction is itself erroneous in several 

respects. First, Dell’s identification of the alleged function omits the qualifier “of said scheduler.” 

Second, Dell errs in seeking to unduly restrict the corresponding structure to a particular 

embodiment, and to the exclusion of all other embodiments, by purporting to require “modules 

110, 112, 114 . . . to 130 using a programming language interface (PLI).” The ’360 patent is not 

so restrictive. That the PLI is not necessarily required for all embodiments is confirmed at least 

by the following exemplary description: “[i]f the monitor and scheduler are implemented using 

different programming languages, a programming language interface is required to enable the 

monitor to request the status of elements and parameters associated with the scheduler and to pass 

the request states and parameter values to the monitor.” ’360 patent, 7:58−63. Here, use of a 

conditional “if” statement expressly refutes the interpretation that a PLI is always required. 

Elsewhere, the ’360 patent confirms that certain embodiments may not require a PLI under any 

conditions. See, e.g., id., 12:14−19 (“[T]he monitor system may [(and hence may not)] include a 

program language interface (PLI) to enable the monitor to detect the status and/or operations 

associated with elements of the scheduler module.”) (emphasis added).

5. “comparing means for comparing the detected state with a 

predetermined state for said element and for outputting the result of the 

comparison” (claim 1)4

WSOU’s Position Dell’s Position

No construction required apart from finding this 

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

Alternatively, if deemed subject to 35 U.S.C. 

§ 112, ¶ 6, then,

This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: comparing the detected state 

with a predetermined state for said element 

and for outputting the result of the 

comparison

4 Dell asserts that resolution of the dispute over the “comparing means . . .” term recited in claim 

1 would also resolve disputes that Dell opted to not raise before the Court concerning distinct terms 

recited in claims 18, 21, and 24. However, Dell opted to not identify those distinct phrases recited 

in other claims as requiring Court construction. Dell should not now be allowed to effectively 

circumvent the Board’s order limiting the total number of disputed terms by conflating those 

several distinct terms into one. 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 13 of 34
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Function: comparing the detected state with a 

predetermined state for said element and for 

outputting the result of the comparison;

Structure: monitor having the claimed 

functionality. 

Structure: Indefinite

Dell seeks to challenge the above term as allegedly indefinite for lacking any corresponding 

structure. Dell’s challenge fails at the outset, however, because the claim language itself rebuts the 

presumption that 35 U.S.C. § 112, ¶ 6 applies. See supra, § I.B. Independent claim 1 recites the 

disputed phrase in the more fulsome context, “[a] monitor for monitoring the operation of a 

scheduler for controlling the departure of data cells, comprising . . . comparing means for

comparing the detected state with a predetermined state for said element and for outputting the 

result of the comparison.” As with the other disputed “means for” terms, the “comparing means” 

is expressly tethered to the “monitor” structural term. For analogous reasons to those set forth 

above, therefore, the claim language itself recites sufficient corresponding structure to avoid 

application of § 112, ¶ 6. Id. 

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the acknowledged corresponding structure recited in the claim language itself, 

then the function and corresponding structure from the specification should be interpreted 

according to the alternative construction set forth in the table above. This alternative construction 

is intended to encompass at least the following exemplary embodiments of a “monitor” as claimed: 

monitor 7 (e.g., 4:32−40); monitor 107 (e.g., 6:22−61; 8:38−41; 10:20−32; 11:38−41; 

11:54−12:19; 12:42−52); rules 134 (e.g., 6:33−37; 7:28−47); a rule checker 132 (e.g., 6:37−44; 

7:28−48; 8:41−43); etc. This non-exhaustive list of exemplary disclosure encompasses various 

embodiments and, consequently, it is not offered as a comprehensive set of requirements which 

must all be met if the Court were to apply a means-plus-function construction. 

The burden rests with Dell to prove, by clear and convincing evidence, its untenable theory 

that the specification fails to disclose any corresponding structure. Dell has not and cannot meet 

its burden in view of the ample structural disclosure within the ’360 patent specification 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 14 of 34
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concerning a “monitor” having the claimed operation. 

6. “determining means for determining an expected value of said parameter 

based on the detected state of said element” (claim 18)5

WSOU’s Position Dell’s Position

No construction required apart from finding this term 

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

Alternatively, if deemed subject to 35 U.S.C. § 112, ¶ 

6, then,

Function: determining an expected value of said 

parameter based on the detected state of said element.

Structure: monitor having the claimed functionality.

This term is subject to 35 U.S.C. § 112, 

¶ 6.

Function: determining an expected 

value of said element.

Structure: Indefinite

Dell seeks to challenge the above term as allegedly indefinite for lacking any corresponding 

structure. Dell’s challenge fails at the outset, however, because the claim language itself rebuts the 

presumption that 35 U.S.C. § 112, ¶ 6 applies. See supra, § I.B. Independent claim 18 recites the 

disputed phrase in the more fulsome context, “[a] monitor for monitoring the operation of a 

scheduler for controlling the departure of data cells, comprising . . . determining means for 

determining an expected value of said parameter based on the detected state of said element.” As 

with the other disputed “means for” terms, the “determining means” is expressly tethered to the 

“monitor” structural term. For analogous reasons to those set forth above, therefore, the claim 

language itself recites sufficient corresponding structure to avoid application of § 112, ¶ 6. Id. 

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the acknowledged corresponding structure recited in the claim language itself, 

then the function should be “determining an expected value of said parameter based on the detected 

state of said element.” It is unclear why Dell’s identification of alleged function selectively 

excludes certain claim language included within, and specifically directed to, this term. 

5 Dell asserts that resolution of the dispute over the “determining mean . . .” term recited in claim 

18 would also resolve disputes that Dell opted to not raise before the Court concerning distinct 

terms recited in claims 3, 12 and 13. However, Dell opted to not identify those distinct phrases 

recited in other claims as requiring Court construction. Dell should not now be allowed to 

effectively circumvent the Board’s order limiting the total number of disputed terms by conflating 

those several distinct terms into one. 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 15 of 34
11

Specifically, Dell’s identification of alleged function seeks to strike out certain language as 

follows: “determining means for determining an expected value of said parameter based on the 

detected state of said element.” Dell’s rewrite would impermissibly change both what is being 

determined (i.e., “an expected value of said parameter”) and how it must be determined (i.e., at 

least “based on the detected state of said element”).

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the acknowledged corresponding structure recited in the claim language itself, 

then the function and corresponding structure from the specification should be interpreted 

according to the alternative construction set forth in the table above. This alternative construction 

is intended to encompass at least the following exemplary embodiments of a “monitor” as claimed: 

monitor 7 (e.g., 4:32−40); monitor 107 (e.g., 6:25−44; 9:34−10:32; 10:40−47; 10:58−11:12; 

11:21−27; 11:38−41; 11:49−60; 12:20−53); rules (e.g., 6:33−37; 9:15−21; 9:34−10:32; 

10:58−11:12; 11:21−27); a rule checker 132 (e.g., 6:37−44; 7:28−48; 9:21−26); etc. This nonexhaustive list of exemplary disclosure encompasses various embodiments and, consequently, it 

is not offered as a comprehensive set of requirements which must all be met if the Court were to 

apply a means-plus-function construction.

The burden rests with Dell to prove, by clear and convincing evidence, its untenable theory 

that the specification fails to disclose any corresponding structure. Dell has not and cannot meet 

its burden in view of the ample structural disclosure within the ’360 patent specification 

concerning a “monitor” having the claimed operation.

C. Dell errs in seeking to construe certain terms which do not recite the word 

“means” as invoking means-plus-function construction under § 112, ¶ 6

Dell also errs in seeking means-plus-function constructions of terms which do not recite 

the word “means” and therefore presumptively do not invoke § 112, ¶ 6. The presumption arising 

from the lack of the word “means” is underscored here by the fact that certain other disputed terms 

of the ’360 patent do recite “means for” limitations. See Al-Site Corp. v. VSI Intern., Inc., 174 

F.3d 1308, 1318–19 (Fed. Cir. 1999) (claim term “eyeglass hanger member for mounting a pair of 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 16 of 34
12

eyeglasses” with its absence of term “means for” was not a means-plus-function limitation, while 

claim term “means for securing” was a means-plus-function limitation). The Federal Circuit has 

articulated the § 112, ¶ 6 test in a negative as follows: “[t]o invoke [35 U.S.C.A. § 112, ¶ 6] the 

alleged means-plus-function claim element must not recite definite structure which performs the 

described function.” Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed. Cir. 1996) (emphasis 

added).

7. “element for recording whether a queue is empty or occupied” (claim 1)

WSOU’s Position Dell’s Position

No construction required apart from finding 

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

Alternatively, if deemed subject to 35 U.S.C. 

§ 112, ¶ 6, then,

Function: recording whether a queue is 

empty or occupied.

Structure: scheduler having the claimed 

functionality.

Subject to 35 U.S.C. § 112, ¶ 6.

Function: recording whether a queue is empty 

or occupied

Structure: queue status register 165, 167, 201, 

or 203

Claim 1 recites the disputed phrase in the context of “an element of said scheduler, . . . said 

element comprises: an element for recording whether a queue is empty or occupied.” The 

“element” in question is recited as being part of the “scheduler”—i.e., part of sufficiently definite 

structure for performing the alleged functional language. Id. Accordingly, the presumption 

against application of means-plus-function construction stands.

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the acknowledged corresponding structure recited in the claim language itself, 

then the function and corresponding structure from the specification should be interpreted 

according to the alternative construction set forth in the table above. This alternative construction 

is intended to encompass at least the following exemplary embodiments: scheduler (e.g., 5:4−7); 

queue status register (e.g., registers 165, 167, 201, and/or 203, as described, for example, at 5:4−10 

and 8:1−6); the buffer selection unit 175 (e.g., 5:45−50); etc. This list of exemplary structure 

encompasses various embodiments and, consequently, it is not offered as a comprehensive set of 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 17 of 34
13

requirements which must all be met if the Court were to apply a means-plus-function construction. 

In addition, the parenthetical citations provided above are merely representative examples and are 

not intended to be exhaustive of all such examples.

Dell’s proposed construction should be rejected under the first prong of the analysis 

because, under the circumstances, Dell will not be able to rebut the presumption against application 

of § 112, ¶ 6. Even in applying its erroneous means-plus-function construction, Dell compounds 

its error in taking a myopic view of the specification that overlooks relevant structural disclosure.

D. Dell violates the Court’s Order in seeking to construe additional terms in excess 

of the ordered limit of 36 total terms

Dell has overtly attempted to circumvent the Court’s Order limiting the total number of 

disputed terms offered for Court construction (across all four groupings of briefs) to no more than 

thirty-six terms.

6

 For the four cases addressed in the instant brief, Dell improperly groups together 

certain additional terms, without counting any of them toward the total number of disputed terms 

offered for Court construction. Dell mistakenly believes these additional terms need not be 

individually counted merely because Dell has taken the position that each invokes § 112, ¶ 6, 

notwithstanding that the lack of the word “means.” This of course ignores that each additional 

term would require individual consideration of (1) whether Dell has sufficiently rebutted the 

presumption against means-plus-function construction under § 112, ¶ 6, (2) the respective function, 

and (3) the respective corresponding structure in the specification. Indeed, that each of these 

additional terms would require individual and independent construction by the Court is confirmed 

by the fact that Dell purports to offer varying and unique constructions for each. Under such 

circumstances, these additional terms cannot fairly be considered as properly offered to the Court 

for construction. Nevertheless, out of an abundance of caution, WSOU submits that following 

counter-positions on the additional terms Dell identifies yet fails to count, in clear violation of the 

ordered limit.

6 See notes 1, 3−5, supra.

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 18 of 34
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i. “an element for recording the number of data cells contained in a queue” 

(claim 1, 20)

ii. “an element for recording the number of cells contained in a queue” 

(claim 9, 30, 35, 38)

iii. “an element for recording the quantity of data contained in a queue” 

(claim 26)

WSOU’s Position Dell’s Position

No construction required apart from finding this 

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

Alternatively, if deemed subject to 35 U.S.C. § 112, 

¶ 6, then,

Function: recording the [quantity of data / number 

of cells / number of data cells] contained in a queue;

Structure: scheduler having the claimed 

functionality.

Subject to 35 U.S.C. § 112, ¶ 6.

Function: recording the [quantity of 

data/number of data cells] contained in a 

queue

Structure: counter 169, 205, or 207.

Setting aside that none of the above three additional yet uncounted terms are not properly 

before the Court, Dell errs in advancing a means-plus-function construction for each phrase. The 

presumption against application of means-plus-function construction under § 112, ¶ 6 stands 

unrebutted for each of these additional terms, for reasons analogous to those discussed above in 

addressing term no. 7 (“element for recording whether a queue is empty or occupied”). For 

example, claims 1, 9 and 26 each recite the disputed phrase in the context of “an element of said 

scheduler, . . . said element comprises: . . . an element for recording . . . .” In each instance, the 

“element” in question is recited as being part of the “scheduler”—i.e., part of sufficiently definite 

structure for performing the alleged functional language. Accordingly, the presumption against 

application of means-plus-function construction stands.

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the corresponding structure recited in the claim language itself, then the function 

and corresponding structure from the specification should be interpreted according to the 

alternative construction set forth in the table above. This alternative construction is intended to 

encompass at least exemplary embodiments of a scheduler that optionally includes one or counters 

(e.g., 5:14−19; 8:9−11; 8:21−23). 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 19 of 34
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iv. “an element identifying a queue from which data is to be output” 

(claims 1, 26)

WSOU’s Position Dell’s Position

No construction required apart from finding 

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

Alternatively, if deemed subject to 35 U.S.C. § 

112, ¶ 6, then,

Function: identifying a queue from which data 

is to be output

Structure: scheduler having the claimed 

functionality.

Subject to 35 U.S.C. § 112, ¶ 6.

Function: identifying a queue from which data 

is to be output

Structure: pointer 177, 179, 181, 183, 209, 

211, 213, or 215

Setting aside that the above additional yet uncounted term is not properly before the Court, 

Dell errs in advancing a means-plus-function construction. The presumption against application 

of means-plus-function construction under § 112, ¶ 6 stands unrebutted for this additional term,

for reasons analogous to those discussed in the immediately preceding section. For example, 

claims 1 and 26 each recite the disputed phrase in the context of “an element of said scheduler, . . 

. said element comprises: . . . an element identifying a queue from which data is to be output.” In 

each instance, the “element” in question is recited as being part of the “scheduler”—i.e., part of 

sufficiently definite structure for performing the alleged functional language. Accordingly, the 

presumption against application of means-plus-function construction stands.

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the corresponding structure recited in the claim language itself, then the function 

and corresponding structure from the specification should be interpreted according to the 

alternative construction set forth in the table above. This alternative construction is intended to 

encompass at least embodiments of a scheduler that optionally includes one or more pointers. 

v. “an element identifying a group of queues from which data is to be 

output” (claims 1, 26)

WSOU’s Position Dell’s Position

No construction required apart from finding this 

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

Subject to 35 U.S.C. § 112, ¶ 6.

Function: [identifying/indicating] a group 

of queues, from which data is to be output

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 20 of 34
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Alternatively, if deemed subject to 35 U.S.C. 

§ 112, ¶ 6, then,

Function: identifying a queue from which data is 

to be output

Structure: scheduler having the claimed 

functionality.

Construction: [identifying/indicating] a 

group of queues, i.e., high or low priority, 

from which data is to be output

Structure: Indefinite

Setting aside that the above additional yet uncounted term is properly before the Court, 

Dell errs in advancing a means-plus-function construction and then arguing that the term is 

indefinite as allegedly lacking any corresponding structure. The presumption against application 

of means-plus-function construction under § 112, ¶ 6 stands unrebutted for this additional term,

for reasons analogous to those discussed above. For example, claims 1 and 26 each recite the 

disputed phrase in the context of “an element of said scheduler, . . . said element comprises: . . . 

an element identifying a group of queues from which data is to be output.” In each instance, the 

“element” in question is recited as being part of the “scheduler”—i.e., part of sufficiently definite 

structure for performing the alleged functional language. Accordingly, the presumption against 

application of means-plus-function construction stands.

If the Court is inclined to find that the disputed phrase invokes 35 U.S.C. § 112, ¶ 6, 

notwithstanding the corresponding structure recited in the claim language itself, then the function 

and corresponding structure from the specification should be interpreted according to the 

alternative construction set forth in the table above. This alternative construction is intended to 

encompass at least the following structural disclosure directed to exemplary embodiments directed 

to a scheduler as claimed: the embodiments described with reference to Fig. 3A including, for 

example, its grouping of queues according to high and low priorities; queue status register (e.g., 

as described at 8:1−6); priority selectors; counters; current and next pointers identifying a group 

of queues form which data is to be output; etc. This identification of exemplary structure 

encompasses various embodiments and, consequently, it is not offered as a comprehensive set of 

requirements which must all be met if the Court were to apply a means-plus-function construction. 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 21 of 34
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Even if Dell had properly preserved its indefiniteness challenge by submitting this term as 

one of the thirty-six total terms allowed by the Court’s order, and it did not, the burden would still 

rest with Dell to prove, by clear and convincing evidence, its untenable theory that the presumption 

against application of means-plus-function is overcome and the specification fails to disclose any

corresponding structure. 

II. U.S. Patent No. 7,539,133 (Case No. 6:20-cv-00480-ADA)

1. “whether a congestion condition exists [on/for] the egress node” (claims 1, 

12, and 13)

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “whether the egress node is currently congested”

The above phrase recites straightforward words that do not require Court construction. 

What Dell disguises as a proposed construction is in fact an attempt to commit the “cardinal sin” 

of importing limitations from an example embodiment of the specification. Phillips, 415 F.3d at 

1320 (it is a cardinal sin of patent law to read a limitation from the specification into the claims). 

That Dell’s construction is not unambiguously required by the intrinsic evidence is confirmed by 

the statement, “in one embodiment, the egress node congestion status provides an indication as to 

whether the egress node currently has a congestion condition (i.e., whether the egress node is 

currently congested). ’133 patent, 5:20−23 (emphasis added). This is the only instance in the entire 

specification where the word “currently” is used. Even if this had been the only disclosed 

embodiment, and it is not, the Federal Circuit has “expressly rejected the contention that if a patent 

describes only a single embodiment, the claims of the patent must be construed as being limited to 

that embodiment.” Cont’l Circuits, 915 F.3d at 797 (citations omitted).

2. “processing the packets” (claims 1, 12, and 13)

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “modifying, at the ingress node, the queuing 

priority of packets destined for the egress node”

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 22 of 34
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The phrase “processing the packets” requires no construction, particularly in the respective 

contexts in which it is recited. As recited in claim 1, for example, the phrase is recited in the more 

fulsome context, “processing the packets such that packets associated with egress nodes for which 

the congestion condition does not exist have a different queuing priority within the load-balancing 

network than packets associated with egress nodes for which the congestion condition exists.” The 

“such that” clause (which Dell separately identifies for construction) provides sufficient context 

for the “processing the packets” term, such that there is no need to depart from what is expressly 

recited. 

Dell errs in seeking to add limitations concerning where the “processing” must take place—

i.e., “at the ingress node.” Claim 1 (written in method form) is agnostic as to whether the 

“processing” is performed by an “ingress node” in particular. It would be erroneous, therefore, to 

newly add such a universal requirement for all instances in which the phrase “processing the 

packets” is recited. See, e.g., Cont’l Circuits 915 F.3d at 796–97; Dayco, 258 F.3d at 1327. Indeed, 

Dell’s construction for “processing the packets” (recited in claims 1, 12, and 13) is internally 

inconsistent with its separate construction for “means for processing the packets” (recited in claim 

12). For “processing the packets,” Dell seeks to add the requirement that the processing must be 

performed “at the ingress node.” In addressing “means for processing the packets,” however, Dell 

inconsistently arguesthat an “ingress node” is not itself required as corresponding structure. Dell’s 

inconsistency only underscores the error in its proposed constructions for these terms.

Dell also errs in seeking to rewrite the claim language as requiring a modification of 

queuing priority. This too would violate the proscription against adding limitations that are neither 

required by claim terms nor unambiguously required by either the specification or the prosecution 

history. See, e.g., Cont’l Circuits 915 F.3d at 796–97; Dayco, 258 F.3d at 1327. As recited in 

independent claim 1, for example, the “processing” need simply be effected “such that packets 

associated with egress nodes for which the congestion condition does not exist have a different 

queuing priority within the load-balancing network than packets associated with egress nodes for 

which the congestion condition exists.” This expresses a relative difference in queuing priority 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 23 of 34
19

between “nodes for which the congestion condition does not exist” and “nodes for which the 

congestion condition exists.” The claim language does not, however, expressly require a 

modification of a given queuing priority. Nothing in the remainder of the intrinsic evidence 

unambiguously requires Dell’s impermissible attempt to import a modification limitation.

3. “such that packets associated with egress nodes for which the congestion 

condition does not exist have a different queuing priority within the load 

balancing network than packets associated with egress nodes for which 

the congestion condition exists” claims 1, 12, and 13)

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “packets are marked depending on whether they are 

destined for a congested egress node, such that marked 

packets have a different probability of being dropped”

The above disputed phrase recites straightforward words that require no construction in 

this context. As discussed above (at § II.2), the “such that” clause plainly expresses a relative 

difference in queuing priority between “nodes for which the congestion condition does not exist” 

and “nodes for which the congestion condition exists.” Under the circumstances, no construction 

is required. 

Dell does not offer a definition for any of the words recited in the disputed phrase and, 

instead, impermissibly seeks to rewrite the phrase to newly require unrecited concepts—e.g., 

marking packets and conditionally dropping packets. Dell’s proposed construction should be 

rejected as violating the proscription against adding limitations that are neither required by claim 

terms nor unambiguously required by either the specification or the prosecution history. See, e.g., 

Cont’l Circuits 915 F.3d at 796–97; Dayco, 258 F.3d at 1327. 

None of the independent claims 1, 12, and 13 expressly require those extraneous 

limitations. Far from unambiguously requiring the extraneous limitations Dell seeks to add, the 

specification refutes such a construction by describing those concepts as optional aspects of certain 

alternative embodiments. See, e.g., ’133 patent, 5:6−10 (“In one embodiment, the determination 

as to whether to modify the queuing priority of a packet is determined using an egress node 

congestion status associated with the egress node through which the packet is assigned to leave 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 24 of 34
20

the load-balancing network.”); 5:33−38 (“In another such embodiment, processor 210 may

process the packet in a manner for modifying a queuing priority associated with the packet (e.g., 

marking the packet as having a particular queuing priority).”) (emphasis added). 

Dell’s impermissible rewrite should also be rejected as violating the doctrine of claim 

differentiation. The Federal Circuit has further explained the practical import of the doctrine of 

claim differentiation at one level as a prohibition on reading limitations from dependent claims 

into independent claims. Karlin Technology, Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971–

72, (Fed. Cir. 1999) (“limitations stated in dependent claims are not to be read into the independent 

claim form which they depend.”); see also Comark Comm'ns, Inc. v. Harris Corp., 156 F.3d 1182, 

1187 (Fed.Cir.1998) (“There is presumed to be a difference in meaning and scope when different 

words or phrases are used in separate claims. To the extent that the absence of such difference in 

meaning and scope would make a claim superfluous, the doctrine of claim differentiation states 

the presumption that the difference between claims is significant.”). 

Under the doctrine, it would be improper to import marking and dropping limitations from 

certain dependent claims into their respective independent claims. For example, independent 

claim 1 is expressly differentiated from dependent claims 6−11 in that only those dependent claims 

(though not claim 1) expressly requiring marking packets. See, e.g., id., 16:66−18:6. As another 

example, while claim independent claim 1 does not recite any limitations directed to dropping

packets, claim 4 depending therefrom does. Thus, Dell’s impermissible attempt to import into 

each independent claim extraneous dropping and marking limitations should also be rejected as 

violating the doctrine of claim differentiation. 

4. “means for determining an egress node associated with each of a plurality 

of packets of a traffic flow received at an ingress node” (claim 12)

WSOU’s Position Dell’s Position

This term is subject to 35 U.S.C. § 112, ¶ 6

Function: determining an egress node 

associated with each of a plurality of 

This term is subject to 35 U.S.C. § 112, ¶ 6

Function: determining an egress node associated 

with each of a plurality of packets of a traffic flow 

received at an ingress node.

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 25 of 34
21

packets of a traffic flow received at an 

ingress node 

Structure: switching component of a node

Structure: processor 210, switch 230, and one or 

more routing tables associated with switch 230

The parties agree that the above term is subject to means-plus-function construction under 

35 U.S.C. § 112, ¶ 6. The parties also agree as to the relevant function. The dispute over this term 

is whether the corresponding structure necessarily requires each of the specifically-referenced 

components Dell identifies. See, e.g., 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., 194 F.3d at 1258 (“The statute does not permit . . . incorporation 

of structure from the written description beyond that necessary to perform the claimed function.”). 

The specification expressly attributes this functional language to the structure of “a switching 

component of the ingress node.” ’133 patent, 2:62−3:3. Elsewhere, the ’133 patent confirms that 

at any given moment nodes 104 may generally operate as ingress nodes, intermediate nodes, and 

egress nodes, depending on the circumstances. Id., 3:43−56. “For traffic entering the loadbalancing network from networks, associated nodes 104 operate as ingress nodes.” Id. Thus, while 

the node structure itself remains the same, whether a node operates as an “ingress” node at a given 

moment depends on the circumstances. Accordingly, the corresponding structure necessary to 

perform the recited function should be construed as “switching component of a node.”

Dell errs at least in seeking to narrow claim scope to require three exemplary aspects of a 

particular embodiment, to the exclusion of all other disclosed embodiments. That “routing tables” 

are not unambiguously required for all embodiments is made explicit by the disclosure “[i]n one 

embodiment, processor 210 queries one or more routing tables associated with switch 230 for 

determining the egress node associated with each packet received by processor 210.” Id., 5:14−17 

(emphasis added). Indeed, that non-limiting statement is the one and only reference to “routing 

tables” in the entire ’133 patent. It is also significant that the statement is described as an 

alternative to another embodiment also introduced as “in one embodiment.” Id., 5:11−14.

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 26 of 34
22

5. “means for processing the packets such that packets associated with egress 

nodes for which the congestion condition does not exist have a different 

queuing priority within the load-balancing network than packets 

associated with egress nodes for which the congestion condition exists”

WSOU’s Position Dell’s Position

This term is subject to 35 U.S.C. § 112, 

¶ 6.

Function: processing the packets such 

that packets associated with egress nodes 

for which the congestion condition does 

not exist have a different queuing priority 

within the load-balancing network than 

packets associated with egress nodes for 

which the congestion condition exists.

Structure: processor having the claimed 

functionality.

This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: processing the packets such that packets 

associated with egress nodes for which the 

congestion condition does not exist have a different 

queuing priority within the load-balancing network 

than packets associated with egress nodes for which 

the congestion condition exists.

Structure: processor 210 which marks the packets 

such that marked packets have a different 

probability of being dropped than unmarked 

packets.

The parties agree that the above term is subject to means-plus-function construction under 

35 U.S.C. § 112, ¶ 6 and the parties have identified the same recited functional language. The 

parties also at least agree least that the “means for processing . . .” is an explicit reference to a 

processor. The dispute over this term is essentially whether the corresponding structure should 

be limited in terms of unrecited functionality of the processor. It should not. 

In Acromed Corp. v. Sofamor Danek Group, Inc., 253 F.3d 1371, 1382–83 (Fed. Cir. 2001),

the Circuit ruled a district court properly refused to impose a requirement to the corresponding 

structure of a means-plus-function limitation that the diameter of the body portion of the claimed 

screw be greater than the crest diameter of the threaded portion of the screw, even though that was 

the screw disclosed in the written description, where the diameter size was unnecessary to achieve 

the claimed function. Here, it also would be improper to import the extraneous marking limitation 

as a structural requirement where the specification discloses examples that do not necessarily 

require such marking. See, e.g., 5:6−10 (“In one embodiment, the determination as to whether to 

modify the queuing priority of a packet is determined using an egress node congestion status 

associated with the egress node through which the packet is assigned to leave the load-balancing 

network.”); 5:33−38 (“In another such embodiment, processor 210 may process the packet in a 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 27 of 34
23

manner for modifying a queuing priority associated with the packet (e.g., marking the packet as 

having a particular queuing priority).”) (emphasis added). That marking in the manner set forth in 

Dell’s proposed construction is not necessarily required in all instances is also made clear by 

several dependent claims which introduce marking as an additional limitation not required by the 

respective independent claim from which they depend. See, e.g., id., 16:66−18:6 (claims 6−11).

III. U.S. Patent No. 7,636,309 (Case No. 6:20-cv-00485-ADA)

1. “split ratio vector” (claims 1, 11, 16)

WSOU’s Position Dell’s Position

“the proportion of the flow routed in a given 

path relative to the cumulative flows on the 

plurality of paths”

“the proportion of the flow routed in each 

path”

The ’309 patent describes and distinguishes what it refers to as “intra-flow splitting” and 

“flow-based splitting.” In the context of “intra-flow splitting” in particular, the ’309 patent states 

“a split ratio vector of a flow is defined as the proportion of the flow routed in each path.” ’309 

patent, 3:48−49. It would be inappropriate, however, to adopt this statement verbatim as the 

definition for the “split ratio vector” term, without also considering the context in which that term 

is recited. Claim 1 recites, in part, “splitting by the node each of the plurality of traffic flows into 

at least two sub-flows” and “routing by the node the packets or bytes of the at least two sub-flows 

respectively on at least two paths in the network.” This claim language can be explained with 

reference to Fig. 1A, reproduced below.

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 28 of 34
24

’309 patent, Fig. 1A. The corresponding description includes the following:

In intra-flow splitting, flow X1 is split at R1 with the split ratio vector (q1, 1-

q1). Then, q1 fraction of the flow takes the path R1-R2-R3-R6 and the 

remaining takes the path R1-R4-R5-R6. Similarly for the flow X2, the traffic 

is split with the split ratio vector (q2, 1-q2).

Id., 4:15−19. In the illustrated embodiment, the intra-flow splitting involves at least two distinct 

flows split along two distinct paths R1-R2-R3-R6 and R1-R4-R5-R6, respectively. The “top” path 

illustrated in Fig. 1A (R1-R2-R3-R6) is identified as taking “q1 fraction of the flow” and, in this 

example, has a split ratio vector of (q1, 1-q1). The “bottom” path (R1-R4-R5-R6) is identified as 

taking q2 fraction of the flow and, in this example, has a split ratio vector of (q2, 1-q2). Those 

respective split ratio vectors, which are represented with different variables (q1 and q2), are not 

necessarily identical to one other. In other words, it is not necessary that precisely half of the 

fraction of the flow is routed over each one of the identified paths, such that q1 = q2. 

One problem arising from adopting Dell’s proposed construction of adopting a statement 

in the specification verbatim is that, in the context of claim 1, that statement could be interpreted 

as requiring that each path must route the same proportion of the flow. This would depart from 

the disclosure and the surrounding context of the claim language. That a given path will have its 

own respective split ratio vector is confirmed by the recitation in claim 1, “wherein the given split 

ratio vector is configured such that the portion of the multiple packets or bytes assigned to each of 

the plurality of sub-flows is based at least in part on a ratio between a mean traffic rate of a 

cumulative flow on the respective corresponding path and a sum of mean traffic rates of 

cumulative flows on the plurality of paths.” 

To avoid any dispute down the road concerning the proper scope of the “split ratio term,” 

and in view of its informative context recited in the claim language, WSOU proposes construing 

this term to mean “the proportion of the flow routed in a given path relative to the cumulative 

flows on the plurality of paths.”

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 29 of 34
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IV. U.S. Patent No. 9,164,800 (Case No. 6:20-cv-00481-ADA)

1. “latency cost” (claims 1, 13)

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “communication delay between a compute node 

and a data node”

The term “latency cost” requires no construction, particularly in view of the informative 

context in which it is recited. Independent claims 1 and 13 both recite this term in the context of 

“wherein the assignment objective is based on a latency cost used in obtaining a set of assignments 

by applying an algorithm.” 

Dell errs in seeking to restrict this term to “communication delay between a compute node 

and a data node” only, and to the exclusion of any sort of delay between other nodes that do not 

fit that narrow description. Dell’s proposed construction should be rejected as violating the 

proscription against adding limitations that are neither required by claim terms nor unambiguously 

required by either the specification or the prosecution history. See, e.g., Cont’l Circuits 915 F.3d 

at 796–97; Dayco, 258 F.3d at 1327. 

Far from unambiguously requiring Dell’s impermissible rewrite, the intrinsic evidence 

expressly refutes it. For example, the specification expressly contemplates “communication 

latency between data nodes and compute nodes or between multiple computer nodes cooperating 

to perform a processing task.” ’800 patent, 1:37−41; see also 8:10−12 (“For example, the cloud 

controller 120 may determine that a data node may be processed by two compute nodes or that one 

compute node may process two data nodes.”). Elsewhere, the specification similarly discloses,

In view of the foregoing, a cloud controller may, in assigning compute 

nodes to data nodes, optimize the latencies between such nodes according 

to various objectives. In various applications, however, compute nodes may 

alternatively or additionally communicate with each other, introducing

another form of communication that may be optimized.” 

Id., 11:24−29 (emphasis added). This repeated disclosure of alternative example sources of 

communication latency, according to certain preferred embodiments, confirms it would be 

erroneous to unduly restrict “latency cost” to but one of the multiple disclosed examples. It is 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 30 of 34
26

well-established that a construction which would exclude a preferred embodiment “is rarely, if 

ever, correct and would require highly persuasive evidentiary support.” Eko Brands, LLC v. Adrian 

Rivera Maynez Enterprises, Inc., 946 F.3d 1367, 1373 (Fed. Cir. 2020) (citations and internal 

quotations omitted).

2. “[determining/determine] an assignment objective” (claims 1, 13)

WSOU’s Position Dell’s Position

Plain and ordinary meaning. “select[ing] one of a plurality of assignment

objectives”

The phrases “[determining/determine] an assignment objective” recite straightforward 

words that require no construction here, particularly within the informative context in which they 

are recited. As recited in claims 1 and 13, for example, the surrounding context already specifies 

that “the assignment objective is based on a latency cost used in obtaining a set of assignments by 

applying an algorithm.” Dell effectively concedes no construction is required for the recited words 

because Dell proposes a construction that simply restates the recited words “assignment” and 

“objective” (albeit Dell rewords the latter in its plural form).

Notwithstanding Dell’s tacit concession that the recited words themselves require no 

construction, Dell seeks to add extraneous limitations that would risk excluding certain preferred 

embodiments. Eko Brands, 946 F.3d at 1373 (Fed. Cir. 2020) (“A claim construction that excludes 

the preferred embodiment is rarely, if ever, correct and would require highly persuasive evidentiary 

support.”) (citations and internal quotations omitted). For example, the specification includes the 

following relevant description:

The cloud controller 120 may then, in step 350, determine the assignment 

objective to be applied. For example, the cloud controller may determine 

that the assignment objective is to minimize the total latency or to minimize 

the maximum latency within a total latency limit. Such determination may 

be made, for example, based on a client request or a cloud operator 

configuration. In various embodiments, the cloud controller 120 may not 

provide an option to select an assignment objective. For example, the cloud 

controller 120 may automatically select an objective based on network 

conditions. As another example, the cloud controller 120 may only provide 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 31 of 34
27

a single objective. In such embodiments, step 350 may simply include 

accessing code specified for performing the assignment.

’800 patent, 8:21−34 (emphasis added). As shown by the paragraph above, not every preferred 

embodiment necessarily requires that the determining of an assignment objective must involve 

selecting one of a plurality of assignment objectives. 

It is anticipated that Dell will attempt to raise an argument of prosecution history disclaimer 

to justify its attempt to exclude preferred embodiments and add extraneous requirements. The 

Federal Circuit has provided the following guidance concerning this doctrine:

The doctrine does not apply unless the disclaimer is “both clear and 

unmistakable to one of ordinary skill in the art.” When determining whether 

disclaimer applies, we consider the statements in the context of the entire 

prosecution. If the challenged statements are ambiguous or amenable to 

multiple reasonable interpretations, prosecution disclaimer is not 

established.

Technology Properties Limited LLC v. Huawei Technologies Co., Ltd., 849 F.3d 1349, 1357−58 

(Fed. Cir. 2017) (citation omitted). The facts do not sufficiently support such an exacting standard.

During prosecution, the applicant distinguished certain art, in part, with the following 

remarks: “[t]here is no opportunity to determine which assignment objective is to be achieved and 

apply that algorithm associated with the selected objective because the single approach [of the 

cited art] appears to simply be hard-coded into the system.” Remarks dated April 13, 2015 to a

Final Office Action rejection dated Feb. 26, 2015. That the claim language was distinguished from 

a single approach hard-coded in the system does not unambiguously disclaim all of the several

disclosed embodiments save the one which enables a client or operator to select one of a plurality 

of assignment objectives.

Dell’s construction should also be rejected as departing from the claim language and its 

informative surrounding context by introducing the extraneous requirement “one of a plurality of 

assignment objectives.” The claim language does not recite “objectives” in the plural, but rather 

recites “objective” in the singular and limits that singular objective in terms of it being “based on 

a latency cost used in obtaining a set of assignments by applying an algorithm.” In other words, 

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 32 of 34
28

the claim language specifies that only the determined assignment objective (in the singular) need 

be based on a latency cost used in obtaining a set of assignments by applying an algorithm. It is 

unclear whether Dell’s departure from the claim language would newly require that each one of 

the unrecited “plurality of assignment objectives” would necessarily have to satisfy this “based 

on” requirement or, instead, only the determined one of the unrecited “plurality” would need to do 

so. Nothing in the specification itself nor in the prosecution history (including the remarks 

summarized above) unambiguously requires such a narrowing of claim scope in terms of a 

plurality needing to be “based on . . .” as claimed. 

For the foregoing reasons, the patentee’s word choice should control; and, as Dell tacitly 

acknowledged, there is no need here to define those words themselves.

Case 6:20-cv-00485-ADA Document 78 Filed 02/17/21 Page 33 of 34
29

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-00485-ADA Document 78 Filed 02/17/21 Page 34 of 34