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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC D/B/A

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC.,

DELL INC., EMC CORPORATION,

AND VMWARE, INC.,

Defendants.

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§

CIVIL ACTION 6:20-CV-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 REPLY CLAIM CONSTRUCTION BRIEF 

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TABLE OF CONTENTS

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

A. Dell fails to defend its departures from the plain and ordinary meaning ................ 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 . . .” (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)...............................1

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

B. The “means for” terms of claims 1 and 18 .................................................................. 4

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

1, 18) .................................................................................................................................5

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)....................6

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

on the detected state of said element” (claim 18) .............................................................7

C. Dell did not rebut the presumption against interpreting the disputed “element” 

terms under § 112, ¶ 6 ................................................................................................... 9

7. “element for recording whether a queue is empty or occupied” (claim 1) .......................9

8. “element for recording the number of data cells contained in a queue” (claim 1, 

20) ...................................................................................................................................10

9. “element for recording the number of cells contained in a queue” (claim 9, 30, 

35, 38) .............................................................................................................................10

10. “element for recording the quantity of data contained in a queue” (claim 26)...............10

11. “an element identifying a queue from which data is to be output” (claims 1, 26)..........11

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

(claims 1, 26) ..................................................................................................................11

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II. U.S. Patent No. 7,539,133 (Case No. 6:20-cv-00480-ADA)............................................... 13

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

(claims 1, 12, 13) ............................................................................................................13

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

3. “such that packets ... have a different queuing priority ...” (claims 1, 12, and 

13) ...................................................................................................................................15

4. “means for determining, for each packet, whether ...” (claim 12) .................................15

5. “means for processing the packets such that . . . “ (claim 12).........................................16

III. U.S. Patent No. 7,636,309 (Case No. 6:20-cv-00485-ADA)............................................... 17

1. “split ratio vector” (claims 1, 11, 16)..............................................................................17

IV. U.S. Patent No. 9,164,800 (Case No. 6:20-cv-00481-ADA)............................................... 17

1. “latency cost” (claims 1, 13) ...........................................................................................17

2. “[determining/determine] an assignment objective” (claims 1, 13)................................18

V. Dell’s attack on the integrity of Plaintiff’s counsel is baseless ........................................ 19

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TABLE OF AUTHORITIES

Cases

Absolute Software, Inc. v. Stealth Signal, Inc.,

659 F.3d 1121 (Fed. Cir. 2011)................................................................................................. 14

Acromed Corp. v. Sofamor Danek Group,

253 F.3d 1371 (Fed. Cir. 2001)............................................................................................... 5, 6

Homeland Housewares, LLC v. Whirlpool Corp.,

865 F.3d 1372 (Fed. Cir. 2017)................................................................................................... 3

KCJ Corp. v. Kinetic Concepts, Inc.,

223 F.3d 1351 (Fed. Cir. 2000)................................................................................................. 19

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

194 F.3d 1250 (Fed. Cir. 1999)............................................................................................... 5, 6

Net MoneyIN, Inc. v. VeriSign, Inc.,

545 F.3d 1359 (Fed. Cir. 2008)................................................................................................... 4

SunRace Roots Enter. Co. v. SRAM Corp.,

336 F.3d 1298 (Fed. Cir. 2003)............................................................................................. 4, 15

WMS Gaming, Inc. v. Int’l Game Tech.,

184 F.3d 1339 (Fed. Cir. 1999)................................................................................................... 6

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

A. Dell fails to defend its departures from the plain and ordinary meaning

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 . . .” (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”

Regarding the relevant varying language of claims 1 and 26, which is expressed within 

brackets above, Dell states in its response that it “does not object to a construction that reflects the 

specific language of each claim.” Dkt 82 at 3. In other words, “comprises” means “comprises,” 

“an element for recording the number of data cells contained in a queue” means what it says, and 

“an element for recording the quantity of data contained in a queue” means what it says. This has 

been WSOU’s consistent position—the plain and ordinary meaning should apply.

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”

Dell failed to appreciate, and hence offers no rebuttal to, why its proposed construction is 

presumptively incorrect for at least two independent reasons: (1) under the doctrine of claim 

differentiation (e.g., as between claims 1 and 3); and (2) because it would impermissibly render 

superfluous recitations in claim 3. Compare Dkt. 80 at 3 with Dkt. 82 at 5. Claim 1 recites “a 

predetermined state for said element,” without expressly tethering the “predetermined state” to any

expectation concerning operation of the “scheduler” in general. Claim 3, by contrast, further 

recites an additional variation of the six disputed phrases in the context of “monitoring a parameter 

relating to the operation of said scheduler, and . . . determining an expected state for said element

based on said monitored parameter.” Claim 3 (which depends from claim 1) thus adds the 

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requirements that the “expected state for said element” must be “based on” a monitored 

“parameter,” which claim 3 expressly limits as “relating to the operation of said scheduler.” In 

other words, claim 3 tethers its “expected state” to the “operation of said scheduler” by requiring 

the “expected state” to be “based on” a “parameter relating to the operation of said scheduler.” 

Because claim 3 expressly tethers its “expected state for said element” to “the operation of 

said scheduler” and claim 1 does not so limit its “predetermined state for said element,” it would 

be erroneous to universally limit all the above six distinct phrases in terms of the condition “if the 

scheduler is functioning properly,” as Dell erroneously proposes. Dkt. 80 at 3. Furthermore, the 

explicit tether in claim 3 of the “expected state” limitation to “the operation of said scheduler” 

would be rendered superfluous if, as Dell proposes, the mere recitation of “expected state” itself

exclusively refers to what “would be expected if the scheduler is functioning properly.” Id.

Rather than address the above points, Dell incorrectly argues that the “expected state”

recited in claim 3 “has nothing to do with, and has no effect on, the separately claimed 

‘parameter.’” Dkt. 82 at 5. Setting aside that Dell’s response fails to rebut either presumption 

against Dell’s construction, the claim language refutes Dell’s mischaracterization. Claim 3 recites 

that the “expected state” must itself be “based on” a “parameter relating to the operation of said 

scheduler.” This explicit “based on” requirement expressly interrelates the “expected state” with 

the monitored “parameter” and thus directly refutes Dell’s “nothing to do with” interpretation.

Dell failed in its response to identify any intrinsic evidence unambiguously requiring that 

each one of the six disputed terms above exclusively refers only to what “would be expected if the 

scheduler is functioning properly,” as Dell proposes. That no such unambiguous requirement 

exists is underscored by certain counterexamples Dell overlooks. An example description of the 

rule checker 132 teaches comparing “the status of one or more elements of the scheduler” with 

“specific rules” (e.g., by using a “look-up table”) and outputting the result of the comparison. ’360 

patent at 7:28-43. Absent from that example description is any reference to what “would be 

expected if the scheduler is functioning properly,” much less any unambiguous disclaimer that all

rules applied by the rule checker 132 must exclusively refer to such an expectation.

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The authority Dell cites (without explanation or parenthetical) only undermines Dell’s 

attempt to import extraneous limitation from non-limiting embodiments. Dkt. 82 at 4 (citing 

Homeland Housewares, LLC v. Whirlpool Corp., 865 F.3d 1372, 1377 (Fed. Cir. 2017)). In 

Homeland, the Federal Circuit (including even in the dissenting opinion) rejected the argument 

that “predetermined” should be limited by an example embodiment. Homeland, 865 F.3d at 1376 

and n.3. While the Circuit acknowledged “the specification refers to an embodiment of the 

invention in which ‘a predetermined settling speed’ is empirically determined, the Circuit 

emphasized that the “claim language only requires ‘a predetermined settling speed,’ and does not 

require empirically determining a particular settling speed.” Id. Here, the Court should reject 

Dell’s similar attempt to import limitations from cherry-picked embodiments to unduly restrict the 

“predetermined” term of claim 1 and, by extension, the remainder of the six disputed terms.

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”

Dell failed in its response to meet its burden to identify any intrinsic evidence that 

unambiguously requires the extraneous limitations it seeks to add. See Dkt. 80 at 3-4 (collecting 

cases addressing this burden). Ignoring this burden, Dell attempts to justify its proposed rewrite 

by asserting that the claim language does not specify “what the model represents.” Dkt. 82 at 5 

(emphasis by Dell). At a minimum, Dell overlooks surrounding claim language, which limits the 

“model” in terms of what it must provide. For example, independent claims 1, 18, and 21 each 

expressly limit the “scheduler model” in terms of a requirement to “pass the status of said element 

to said monitor.” ’360 patent at 13:17-18. It is also significant that these three claims expressly 

modify the claimed “model” by a “scheduler” qualifier. Id. This refutes Dell’s unfounded concern 

that, absent its impermissible rewrite, the term would encompass “even one unrelated to the recited 

‘scheduler’” (which Dell misrepresents as WSOU’s alleged position). Dkt. 82 at 6.

Dell also opted to leave undisputed the observation that certain dependent claims defeat 

Dell’s construction by reciting additional limitations directed to the “model” in question. Dkt. 80

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at 4. It remains undisputed, for example, that claim 44 defeats Dell’s construction by reciting “[a] 

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

a functional description of said element.” ’360 patent at 18:16-19 (claim 44). At a minimum, Dell 

failed to explain how “a file containing a functional description of said element,” as recited in 

claim 44, must be limited, instead, to a circuitry description of a scheduler in its entirety. 

Moreover, the doctrine of claim differentiation gives rise to a presumption that claim 44 differs in 

scope from claim 45. Thus, the “model” further limited in claim 44 is presumptively not coextensive in scope with “said computer generated model is described in a programming language 

from which the scheduler can be synthesized” (as recited in claim 45). 

Claim differentiation also counsels against importing limitations from claim 45 into 

independent claim 26. The only difference between independent claim 26 and claim 45 (depending 

therefrom) is the additional requirement in claim 45 recited as “said computer generated model is 

described in a programming language from which the scheduler can be synthesized.” This gives 

rise to an “especially strong” presumption against reading this additional limitation into claim 26. 

SunRace Roots Enter. Co. v. SRAM Corp., 336 F.3d 1298, 1303 (Fed. Cir. 2003). That Dell cited 

instances where the specification provides exemplary subject matter support for what is 

additionally recited in claim 45 does not overcome the “especially strong” presumption against 

importation from a dependent claim into its independent claim. Dkt. 82 at 6-7.

B. The “means for” terms of claims 1 and 18

As the record reflects, WSOU has been forthcoming with its claim construction positions 

throughout the Markman process, including by explaining the basis for its positions during the 

meet and confer process for the disputed “means for” terms of claim 1 of the ’360 patent. 

Mangrum Decl. ¶¶ 2-5; Dkt. 82-1 (Rosenthal Decl.) at ¶¶ 3-4. While WSOU had invited Dell 

during the Markman meet and confer process to identify any authority allegedly supporting a 

contrary position (Mangrum Decl. ¶ 5), Dell opted to not do so until the filing of its response brief.

Upon review of Dell’s arguments in its response concerning Net MoneyIN, Inc. v. VeriSign, 

Inc., 545 F.3d 1359, 1366 (Fed. Cir. 2008), and in further view of WSOU’s recent participation in 

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other Markman proceedings before this Court, and with the aim to simplify the issues, WSOU is 

willing to agree, for purposes of this proceeding, that the disputed “means for” terms of claim 1 

should be construed under § 112, ¶ 6. Accordingly, the tables below set forth WSOU’s simplified 

positions for the disputed “means for” terms of claims 1 and 18. 

4. “detection means for detecting a state of an element of said scheduler” (claims 1, 18)

WSOU’s (revised) Position Dell’s Position

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

Function: detecting a state of an element of 

said scheduler.

Structure: module 110, 112, 114, 116, 118, 

120, 122, 124, 126, 128, or 130.

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 at 12:11–41.

Because the specification discloses that each one of the modules 110, 112, 114, . . . to 130 

provides means to detect a state of a respective element of the scheduler, each one should be 

construed as structure corresponding to the functional requirement “detecting a state of an element 

of said scheduler” (as recited in claims 1 and 18). See, e.g., ’360 patent at 6:62-7:28; see also

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

(“When multiple embodiments in the specification correspond to the claimed function, proper 

application of § 112, ¶ 6 generally reads the claim element to embrace each of those 

embodiments.”) 

Dell failed in its response brief to defend its attempt to further limit the corresponding 

structure for this term to necessarily require “using a programming language interface (PLI) as 

described in ’360 patent at 12:11-41.” Dkt. 80 at 5, 8. It is well established that “a court may not 

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

perform the claimed function.” Acromed Corp. v. Sofamor Danek Group, 253 F.3d 1371, 1382 

(Fed. Cir. 2001); see also Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. 

Cir. 1999) (“The statute does not permit . . . incorporation of structure from the written description 

beyond that necessary to perform the claimed function.”). In addition, a court may not limit the 

corresponding structure to the structure found in a single embodiment of the invention when the 

written description discloses multiple embodiments. See Micro Chemical, 194 F.3d at 1252.

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Under this authority, which WSOU previously cited, Dell has failed to establish that use 

of a PLI is always “necessary” to perform the claimed function. Dell could not do so because the 

’360 patent teaches, in certain embodiments, that a programming language interface or “PLI” is 

not required unless a particular condition applies—i.e., “[i]f the monitor and scheduler are 

implemented using different programming languages.” Dkt. 80 at 8 (quoting ’360 patent at 7:58-

63). The conditional “if” statement reveals that certain embodiments lack the condition—e.g., 

where the monitor and scheduler are not implemented using different programming languages. Id. 

Given the claim language in question does not recite the existence of such a condition as an explicit 

requirement, it would be erroneous to include “using programming language interface (PLI)” as 

“necessary” corresponding structure for this term. Acromed, 253 F.3d at 1382; Micro Chem., 194 

F.3d at 1252, 1258. Dell’s response brief offers no basis to conclude otherwise.

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)

WSOU’s (revised) Position Dell’s Position

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.

Structure: rule checker 132. Structure: Indefinite.

Dell argues the “comparing means for” term of claim 1 is indefinite allegedly because 

“[t]he specification lacks any structure that performs the recited function.” Dkt. 82 at 13 (emphasis 

added). Dell offers no evidence whatsoever to support its conclusory attorney argument. Dell

thus fails to meet the exacting standard of proving indefiniteness by clear and convincing evidence. 

While the burden cannot properly be shifted to WSOU on this issue, a finding that any

corresponding structure is disclosed (algorithmic or otherwise)1 would render moot the sole 

undefended basis Dell offers for its conclusory “indefinite” interpretation.

The ’360 patent discloses structure corresponding to the “comparing” functionality recited 

in claim 1 at least in example descriptions of the rule checker 132. For example, immediately after 

1 Dell does not even attempt to establish in its response (and has therefore waived the argument) 

that a means-plus-function construction for this term would allegedly require algorithmic structure 

under WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1348–49 (Fed. Cir. 1999). 

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describing respective operations of each module 110-130 (at 6:62-7:28), which the parties agree 

discloses corresponding structure for the “detection means” term, the ’360 patent states “[t]he rule 

checker 132 can receive information from one or more modules, for example, concerning the status 

of one or more elements of the scheduler and queue identifications contained within incoming and 

outgoing cells, and compares this information against specific rules contained in the set of rules 

134.” ’360 patent at 7:31-36 (emphasis added). The rules 134 themselves are described as 

optionally having “the form of a look-up table.” Id. at 7:31. The rule checker 132 is further 

described as being “adapted to output the result of the comparison for each rule tested, which may, 

for example, be provided to a user by any suitable means, for example, a visual display.” Id. at 

7:36-39. Example operations of rule checker 132 is still further described, in accordance with “one 

embodiment,” as “output[ting] a result of the comparison only if a rule is violated or may be 

adapted to output the result of each test that is performed (i.e., whether the test is passed or failed).”

Id. at 7:39-43. Figure 2 of the ’360 patent represents the above example disclosure at least by 

illustrating modules 110-130 as providing information to rule checker 132 (as shown by the 

upward extending arrows) and by illustrating rule checker 132 as outputting a “RESULT” arrow.

In view of at least the above example disclosure, the Court should reject Dell’s conclusory, 

undefended position that the specification is entirely void of any corresponding structure. 

No evidence supports Dell’s theory, much less clear and convincing evidence. Rather, all evidence

before the Court supports the presumption of definiteness. 

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

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

WSOU’s (revised) Position Dell’s Position

This term is subject to 35 U.S.C. § 112, ¶ 6. Function: determining an expected value of said 

parameter based on the detected state of said element.

Structure: operation(s) which apply one or more rules 

interrelating “the detected” state and the “expected value,” as 

explained, for example, at 6:34-37, 6:45-58, and 9:12-11:60.

Structure: Indefinite.

Dell argues “[t]he parties’ function identifications are materially the same for purposes of 

this analysis.” Dkt. 82 at 14 n.11. But the parties’ respective identification of function clearly 

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differs. Dell fails in its response brief to articulate a definitive position as to whether “based on 

the detected state of said element” should be given meaningful effect or not.

Dell’s sole alleged basis for its indefiniteness challenge of this term is that “[t]he patent 

lacks any corresponding structure that performs the recited ‘determining’ function” ostensibly 

because “[i]n every single instance that the specification refers to this function, it merely refers to 

the function or a generic ‘means’ to perform it.” Dkt. 82 at 14 (citing ’360 patent at 2:60-62, 

3:41-42).

2

 The four lines of the specification Dell cites clearly do not account for “every instance” 

in which this term is addressed. Dell falls far short of raising clear and convincing evidence.

Dell overlooks, for example, the statement that “[t]he monitor 107 may include a rule 

specifying one or more status of a first scheduler element and the expected status for another 

scheduler element, based on each status of the first element, if the scheduler is operating as 

intended.” ’360 patent at 6:34-37; see also id. at 6:45-58. The term is further described elsewhere 

in the specification with reference to specific example embodiments, each including variations 

thereof, and each introduced with a respective heading. The specification introduces certain 

embodiments with an informative overview. Id. at 9:12-26. The specification goes on to explain 

“one example” application of a rule by the monitor where “the scheduler is intended to operate 

such that the current pointer and/or next pointer in each of the high and low priority queues only 

points to a queue status register indicating that a queue is occupied.” Id. at 9:28-31. Various rules 

are described in this context, each of which may be used to determine an expected value based on 

a detected state. Id. at 9:31-54. The specification then addresses “another embodiment” where 

“according to scheduler operating rules, there should be an interdependence between the states of

[a queue counter and one or more of the position(s) of a current pointer].” Id. at 9:57-63. Example 

variations are disclosed. Id. at 9:63-10:32. Still another embodiment is explained in the context 

of applying rules to determine an expected “next” pointer position based on a “current” pointer 

position. Id. at 10:33-63. Other embodiments are described in the context of a “Priority Selector 

2 See note 1, supra, which also applies to this term.

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Status” (e.g., 10:55-11:27) and “Scheduler Element Status and Output Cell” (e.g., 11:29-60). 

In view of at least the above example disclosure, the Court should reject Dell’s conclusory

and hyperbolic position that “[i]n every single instance that the specification refers to this function, 

it merely refers to the function or a generic ‘means’ to perform it.” Dkt. 82 at 14. No evidence 

supports Dell’s theory, much less clear and convincing evidence. All available evidence supports 

the presumption of definiteness. 

C. Dell did not rebut the presumption against interpreting the disputed “element” 

terms under § 112, ¶ 6

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

WSOU’s (revised) 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: data storage within a scheduler, such as, for 

example, queue status register 165, 167, 201, or 203.

3

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.

Dell has failed to meet its burden to rebut the presumption against applying a means-plusfunction construction for the above term, which lacks the word “means.” Dkt. 80 at 11-12. 

Tellingly, Dell’s response does not dispute that “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.” Id. (citing Al-Site Corp. v. VSI Intern., Inc., 174 F.3d 1308, 

1318-19 (Fed. Cir. 1999)). The caselaw Dell cites is distinguishable because the ’360 patent does 

not use “element” as a “nonce” word. The ’360 patent repeatedly and consistently refers to the 

claimed “element” as a structural component (of the scheduler) that serves as data storage for 

specific information, consistent with how this term is used in the claims. See, e.g., ’360 patent at

Abstract; 2:65‒3:4 (referring to “simulated circuit elements” of “a computer generated model of a 

scheduler”); 12:20-29 (disclosing “PLI tasks may specify the particular elements of the scheduler 

simulator”); 5:4-10 and 8:1-6 (describing queue status register registers 165, 167, 201, 203).

3 See note 1, supra, which also applies to this term.

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Yet another presumption counseling against Dell’s proposed construction is that it is 

unclear if Dell seeks to exclude simulated embodiments—e.g., where the “element for recording” 

is implemented as a “simulated circuit element.” ’360 patent at 2:65‒3:4; see also, e.g., id. at 4:7 

and 12:20-29. That the claimed “element” of the scheduler encompasses simulations and need not 

be implemented in hardware as a physical register is a conceded point. Dell characterized the ’360 

patent as disclosing that “[t]he scheduler can be implemented either ‘in hardware’ or ‘as a software 

model, before synthesis to silicon.” Dkt. 80 at 1 (citing ’360 patent at 1:33-36).

Dell’s proposed means-plus-function construction is also presumptively incorrect because 

it would render superfluous certain claim recitations. For example, claim 8 recites (in pertinent 

part) “said first element comprises a register for recording . . . .” Reciting “register” as an 

additional limitation in the context of an “element for recording . . . empty or occupied” confirms 

to a person of ordinary skill in the art that an “element for recording whether a queue is empty or 

occupied” does not necessarily require a register. 

8. “element for recording the number of data cells contained in a queue” (claim 1, 20)

9. “element for recording the number of cells contained in a queue” (claim 9, 30, 35, 38)

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

WSOU’s (revised) Position Dell’s Position

No construction required apart from finding this 

term is not subject to 35 U.S.C. § 112, ¶ 6. But 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: data storage within a scheduler, such 

as, for example, counter 169, 205, or 207.

4

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.

Even if the Court allows Dell to exceed the limit on the number of disputed terms, including 

by seeking to separately address the above three additional and distinct phrases (Dkt. 80 at 13), 

Dell has failed to overcome the multiple presumptions against its constructions, for reasons 

analogous to those presented above for the other “element” for term of claim 1. See supra, § I.C.7. 

For example, claim 8 also raises a presumption against Dell’s construction as impermissibly 

4 See note 1, supra, which also applies to this term.

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rendering superfluous certain claim recitations. Claim 8 recites (in pertinent part) “said second 

element comprises a counter for recording the number of data cells stored in said queue.” The 

recitation of “counter” as an additional limitation would be rendered superfluous under Dell’s 

interpretation that “element for recording the number of data cells contained in a queue” already 

necessarily requires a “counter” as corresponding structure. In addition, as explained above (id.), 

Dell’s construction is presumptively incorrect to the extent it seeks to exclude preferred simulated

embodiments which do not necessarily use physical counters.

11. “an element identifying a queue from which data is to be output” (claims 1, 26)

WSOU’s (revised) 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: data storage within a scheduler, such as, for 

example, pointer 177, 179, 181, 183, 209, 211, 213, or 215.

5

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

Even if the Court allows Dell to exceed the limit on disputed terms, Dell has failed to 

overcome the multiple presumptions against its means-plus-function construction, for reasons 

analogous to those presented above for the other “element” for term of claim 1 (see supra, § I.C.7). 

Dell’s proposed constructions also risk excluding certain example embodiments, such as, for 

example, “one implementation” disclosing use of a “header” for “a queue identifier.” ’360 patent 

at 11:42-43. That the disputed term should be interpreted more broadly than the specific pointer 

embodiments Dell identified is also confirmed by dependent claim 27. Claim 27 further limits the 

disputed term (as recited in claim 26) with the additional requirement that it must “compris[e] one 

of a current pointer . . . and a next pointer.” This claim differentiation gives rise to an especially 

strong presumption that claim 26 encompasses, but is not limited to, the disclosed pointers. 

12. “element identifying a group of queues from which data is to be output” (claims 1, 26)

WSOU’s (revised) Position Dell’s Position

No construction required apart from finding this 

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

if deemed subject to 35 U.S.C. § 112, ¶ 6, then,

Subject to 35 U.S.C. § 112, ¶ 6.

Function: [identifying/indicating] a group of 

queues, from which data is to be output.

5 See note 1, supra, which also applies to this term.

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Function: identifying a queue from which data 

is to be output.

Structure: priority selector 173 or 208.

6

Construction: [identifying/indicating] a 

group of queues, i.e., high or low priority,7

from which data is to be output.

Structure: Indefinite.

Dell has failed to overcome the multiple presumptions against means-plus-function 

interpretation of the above term, for reasons analogous to those presented above. Supra, § I.C.7. 

If the Court finds this term is subject to 35 U.S.C. § 112, ¶ 6, however, then only WSOU has 

proposed a viable construction (in the alternative, as shown in the table above). Dell fails to prove 

indefiniteness by clear and convincing evidence under its incorrect means-plus-function 

construction. The sole basis Dell alleges for its indefiniteness challenge of this term is the attorney 

argument that “the patent discloses structure only for identifying a single queue ‘from which data 

is to be output.’” Dtk. 82 at 19. Dell overlooks contrary relevant disclosure.

Among other relevant disclosure, the specification is replete with examples of operations 

directed to the priority selector 208 for identifying a group of queues from which data is to be 

output. For context, the ’360 patent further discloses “FIG. 3A shows an example of queue status 

registers 201, 203 of high and low priority groups of queues, respectively.” ’360 patent at 8:47-

52 (emphasis added). “A priority selector 208 is also provided for selecting the 15 high or low 

priority queues for cell readout.” Id. 8:14-15 (emphasis added). That the priority selector 

identifies a group of queues is explicitly disclosed, for example, by stating “if the priority selector 

selects the high priority queues for cell readout, a data cell will be read from queue number 1, the 

current pointer 209 moves to the position of the next pointer, i.e. to the register for queue number 

4 and the next pointer 213 moves to the register of the next occupied queue, i.e. queue number 6.” 

Id. at 8:47-52 (emphasis added). As another example, the specification discloses example 

operations where pointers may be used in connection with the priority selector to identify groups 

of queues. Id. at 10:43 (“the group of queues associated with that next pointer”). The ’360 patent 

6 See note 1, supra, which also applies to this term.

7 Dell fails to defend its attempt to import either “high or low priority” as to sole possibilities for 

the claimed “group of queues” that may be identified. The intrinsic evidence contains no 

disclaimer unambiguously restricting this term in the manner Dell proposes.

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further discloses example operations pertaining to the selection and hence identification of 

multiple queues with reference to selector 173 of Figure 1. Id. at 5:29-40. The patent further 

describes, for example, how the priority selector may be designed to identify which group of 

queues to service based on certain predetermined proportionalities. Id. at 11:15-27.

In view of at least the above example disclosure, the Court should reject Dell’s conclusory, 

undefended position that the specification is entirely void of any corresponding structure. 

No evidence supports Dell’s theory, much less clear and convincing evidence. All available 

evidence supports the presumption of definiteness. 

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, 13)

WSOU’s Position Dell’s Position

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

Citing Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322 (Fed. Cir. 2009), Dell 

attempts to recast the dispute as whether use of “i.e.” signals lexicographic intent even in the 

context of an example embodiment. Dkt. 82 at 22. That is not the dispute. Rather, a fundamental 

problem with Dell’s interpretation is that the alleged lexicography pertains to something other 

than what is recited. The statement from the specification provides the following: “[i]n 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, 5:17-23 (emphasis added). That statement is not lexicographic for the disputed claim 

language because the statement includes an extraneous “currently” qualifier that is not recited in 

the claim language, followed by an “i.e.” parenthetical that restates what the unrecited “currently” 

qualifier means in the context of that embodiment. The absence of the same “currently” qualifier 

in the claim language in question only underscores the error in importing from the specification.

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”

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Dell purports to justify its acknowledged importation of extraneous limitations from the 

specification, which are not recited in the claim language itself, by pointing to instances where the 

specification references “the present invention.” Dkt. 83 at 23. Contrary to Dell’s suggestion, 

there is no uniform rule that every reference to “the present invention” should be read as a 

limitation of the scope of the invention. Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 

1121, 1136 (Fed. Cir. 2011) (citing cases). Statements about “the present invention” should be 

read in the full context of the specification. Id. Such statements are not limiting, for example, 

where the specification clearly indicates the feature in question is a feature of only certain 

embodiments. Id. (citing Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1326 (Fed. Cir. 2008)).

The block quotation Dell asserts as allegedly compelling its construction in fact refutes it. 

Dkt. 82 at 23 (quoting ’133 patent, 2:48-59). That passage makes express distinction at least 

between “modifying queuing priority of the packet” and, instead, “dropping the packet at the 

ingress node.” Id. This counterexample clearly indicates that “processing the packets” does not 

necessarily require “modifying queuing priority of packets,” as Dell proposes. Even when further 

describing a non-limiting embodiment optionally involving queue priority modification, the 

specification discloses such example processing may still involve determining whether to modify. 

See, e.g., ’133 patent, 6:54-59. This further confirms that the claimed “processing” does not 

necessarily require “modifying, at the ingress node . . . ,” as Dell proposes.

That “processing the packets” must be read more broadly than Dell proposes is also 

confirmed by the claims. Claim 4, which depends directly from claim 1, recites “wherein 

processing at least a portion of the packets comprises: dropping the packets associated with egress 

nodes for which the congestion condition exists.” Claim 5 is differentiated from claims 1 and 4 in 

that it recites “wherein processing the packets comprises: assigning the packets associated with 

egress nodes for which the congestion condition exists a lower queuing priority within the loadbalancing network than the packets associated with egress nodes for which the congestion 

condition does not exist.” That claim 5 does not recite its “assigning” as either “reassigning” or 

“modifying” further confirms claim scope should not be so limited. 

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Dell’s argument that “processing the packets” must be executed by “the ingress node” 

primarily relies on its “present invention” theory, which is rebutted above. Dell also points to the 

recitation in claim 1, “determining an egress node associated with each of a plurality of packets of 

a traffic flow received at an ingress node.” This language pertains to a distinct step of claim 1. It 

does not expressly limit where the claimed “processing” must occur. Furthermore, the 

specification discloses the “processing” may occur at intermediate nodes, such as by deciding 

whether to drop packets in response to a packet drop condition. See, e.g., id. at 6:60-65.

3. “such that packets ... have a different queuing priority ...” (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”

Dell fails to overcome the “especially strong” presumption arising under the doctrine of 

claim differentiation. SunRace, 336 F.3d at 1303; Dkt. 80 at 20. That claim 1 must be considered 

broader than what Dell proposes is confirmed at least by multiple claims depending therefrom,

which recite as additional limitations the subject matter Dell seeks to import into claim 1. Id. For 

example, claim 6 recites “marking” limitations as additional requirements for the “queueing 

priority” limitations. As another example, claim 4 adds limitations directed to “dropping packets” 

in accordance with how they are processed. Dell has not rebutted the presumption by citing to 

Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1238 (Fed. Cir. 2016). That distinguishable opinion 

addressed whether a claim construction would render two independent claims co-extensive in 

scope. Here, the doctrine arises under the distinguishable context (addressed in Sunrace) of 

limitations in dependent claims that cannot properly be imported into their independent claim.

4. “means for determining, for each packet, whether ...” (claim 12)

WSOU’s Position Dell’s Position

This term is subject to 35 U.S.C. § 112, ¶ 6. Function: determining, for each packet, whether 

a congestion condition exists on the egress node.

Structure: processor 210 performing 

operations at ’133 patent, 5:11-20.

Structure: Indefinite.

As shown above, the parties agree that this term is subject to means-plus-function 

Case 6:20-cv-00486-ADA-DTG Document 81 Filed 03/31/21 Page 19 of 24
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construction under 35 U.S.C. § 112, ¶ 6, and further agree as to the functional requirement. Dell 

argues the term is indefinite because the only “corresponding device” is a “general purpose 

microprocessor” processor and the specification allegedly lacks disclosure of algorithmic structure 

for that processor to execute. Dtk. 82 at 27. Dell ignores that it had proposed a construction, for 

the term WSOU had believed to be in dispute, in which Dell identified the “processor 210” as 

corresponding structure, without further identifying any corresponding algorithm for that 

processor 210 to execute. Dkt. 80 at 20-21. Dell fails to explain its inconsistent interpretations 

that “means for determining an agrees node . . .” (also recited in claim 12) does not require 

corresponding algorithmic structure, but the above “means for determining . . .” somehow does. 

In any event, sufficient algorithmic structure is disclosed, and Dell has failed to prove 

otherwise by clear and convincing evidence. The specification teaches, for example, that “[t]he 

node congestion information is determined using information distributed by load-balancing nodes

(e.g., messages indicating existence of a congestion condition on the load-balancing node).” ’133 

patent, 3:3-6; see also id. Fig. 3, step 308. Corresponding algorithmic structure is described, 

according to one embodiment, at least in operations in which (1) processor 210 “queries switch 

230” or “queries one or more routing tables associated with switch 230” to “determine the egress 

node of the packet” and (2) “[u]sing the identified egress node associated with the packet,” 

processor 210 “determines the egress node congestion status associated with the identified egress 

node.” Id. at 5:11-20. The congestion status information is itself described, for example, as being 

storable and/or retrievable by processor 210. Id. at 5:39-51. Examples of its generation are also 

provided. Id. at 5:65‒6:12. Dell’s conclusory assertion of no structure whatsoever falls flat.

5. “means for processing the packets such that . . . “ (claim 12)

WSOU’s (revised) 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 210 which marks packets in a 

manner that differentiates queuing priority based on

whether the packets are associated with egress 

Structure: processor 210 which marks 

the packets such that marked packets 

have a different probability of being 

Case 6:20-cv-00486-ADA-DTG Document 81 Filed 03/31/21 Page 20 of 24
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nodes for which the congestion condition exists. dropped than unmarked packets.

While WSOU stands by its position for the above term as set forth in its opening brief, 

WSOU has modified its proposed construction to simplify the dispute. Dell errs in limiting 

“queuing priority” to a probability of being dropped. The specification does not unambiguously 

disclaim “queuing priority” in this way. On the contrary, the description of step 310 (at 9:51‒

10:2) provides an example of “processing the packets” in terms of marking, without mentioning 

(much less unambiguously requiring) the extraneous “such that” clause Dell seeks to add.

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 each path [agreed]

Dell appears to acknowledge in its response brief that the “split ratio term” encompasses a 

path specific interpretation, such that two given paths may have respective flow proportions that 

differ from one another. Dkt. 82 at 31-32. Provided the parties are agreed in this understanding, 

WSOU does not object to adopting verbatim the statement that “[a] split ratio vector of a flow is 

defined as the proportion of the flow routed in each path.” ’309 patent at 3:48-49.

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”

Contrary to what Dell suggests, WSOU disputes that “latency cost” refers exclusively to 

communication delay. Cf. Dkt. 82 at 33. While certain embodiments disclose that communication 

delay may contribute to latency cost, the specification also describes latency cost in terms of “the 

amount of data to be processed, thereby accounting for increased network traffic due to a higher 

volume of data.” ’800 patent at 6:54-57. It is possible, therefore, for latency cost to be high (e.g., 

due to substantial increased traffic) even if communication delay is low. This is not reflected in 

Dell’s construction, which seeks to import limitations from a non-limiting example embodiment. 

Dell compounds its error in suggesting “latency cost” should be limited exclusively to 

delay “between a compute node and a data node.” It remains undisputed that “the specification 

Case 6:20-cv-00486-ADA-DTG Document 81 Filed 03/31/21 Page 21 of 24
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expressly contemplates ‘communication latency between data nodes and compute nodes or 

between multiple computer nodes cooperating to perform a processing task.’” Dkt. 80 at 25 

(collecting citations). Unable to identify any disclaimer, Dell suggests its construction is required 

by the surrounding context in the claim language. But that context speaks for itself, has not been 

identified for construction, and does not expressly limit “latency cost” in the manner Dell proposes. 

Moreover, the “latency cost” term is recited as “being used in obtaining a set of assignments by 

applying an algorithm.” Nothing in the claim language precludes the “set of assignments” obtained 

“by applying an algorithm” from pertaining, for example, to “multiple computer nodes cooperating 

to perform a processing task,” as disclosed in the ’800 patent (at 1:37−41; see also 8:10-12).

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”

Dell asserts prosecution disclaimer compels its proposed construction. Dkt. 82 at 35. 

According to Dell, the specification discloses only two alternative embodiments, which Dell 

characterizes as either (1) “select[ing] one of a plurality of assignment objectives” (using 

quotations to indicate Dell’s construction) or (2) where “only a single objective” is unconditionally

applied (the allegedly disclaimed embodiment disclosed at 8:31-34). Regardless of whether 

prosecution disclaimer applies to the one embodiment Dell identified, Dell misinterprets the 

specification as only disclosing two alternative embodiments. At a minimum, Dell overlooks that 

the specification discloses relevant embodiments outside the context of selecting. Dkt. 80 at 26-

27 (quoting ’800 pat. at 8:21-34). In other words, the specification makes clear that “determining” 

is not limited to “selecting” in all instances, much less selecting but one of a plurality, as Dell 

proposes. Even in differentiating the embodiment where “only a single objective” is 

unconditionally applied (8:31-34), from an alternative embodiment which “automatically select[s]

an objective based on network conditions” (8:29-31), the latter is not limited to selecting one of a 

plurality of assignment objectives. Id. Nothing in that alternative “network conditions” 

embodiment, which Dell has not alleged is disclaimed, precludes the scenario where the 

Case 6:20-cv-00486-ADA-DTG Document 81 Filed 03/31/21 Page 22 of 24
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determination involves confirming if “network conditions” are satisfied for a singular assignment 

objective that is only conditionally applied as part of a determining operation. 

Dell opted to not even take a position in its response brief as to whether its proposed 

construction “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.” Dkt. 80 at 28. Dell’s failure to 

defend its construction against such ambiguity is itself telling and dispositive.

Compounding its error, Dell fails to defend its apparent attempt to limit the claim language 

to selecting only “one” of allegedly multiple assignment objectives. Not only is such an 

interpretation presumptively incorrect,8 the specification refutes it. For example, the specification 

discloses “the cloud controller 120 may also consider one or more optimization constraints, or 

‘assignment objectives[.]’” ’800 patent at 7:10-11 (emphasis added); see also id. at 14:45-48.

V. Dell’s attack on the integrity of Plaintiff’s counsel is baseless

It is not well taken that Dell’s response brief attacks the personal integrity of counsel for 

WSOU. Dkt. 82 at 10. In particular, Dell demands that WSOU “correct” the allegedly “false” 

statement offered in WSOU’s opening brief that “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.’” Dkt. 82 at 10 n.7 (quoting Dkt. 80 at 7).

That statement in the opening brief accurately reflects a response Dell’s counsel offered to a 

specific question asked during a Markman meet and confer. Mangrum Decl. ¶¶ 2-5. However, 

because WSOU recognizes that reasonable minds may disagree as to the legal significance of a 

party statement, and that respective recollections of an unrecorded conference call may reasonably 

diverge, WSOU does not reply in kind with an ad hominem attack.

8 See KCJ Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1355 (Fed. Cir. 2000) (“This court has 

repeatedly emphasized that an indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning 

of ‘one or more.’”)

Case 6:20-cv-00486-ADA-DTG Document 81 Filed 03/31/21 Page 23 of 24
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Dated: March 31, 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 March 31, 

2021.

/s/ Ryan Loveless

Ryan S. Loveless

Case 6:20-cv-00486-ADA-DTG Document 81 Filed 03/31/21 Page 24 of 24