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. 

ZTE CORPORATION, ZTE (USA) 

INC. AND ZTE (TX), INC.,

Defendants.

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§

CIVIL ACTION 6:20-cv-00490-ADA

CIVIL ACTION 6:20-cv-00491-ADA

CIVIL ACTION 6:20-cv-00493-ADA

CIVIL ACTION 6:20-cv-00497-ADA

PLAINTIFF’S REPLY CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 1 of 19
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Table of Contents

I. U.S. Patent No. 7,203,505 (Case No. 6:20-cv-00497) Claim Terms ...............................1

1. “a formatter to format the received data into at least one SMS 

(Short Message Service) message” (Claim 14) / “formatting” 

/“formatter to format” (Claims 1, 14, 23)................................................1

2. “data message receiver” (Claim 14).........................................................2

3. “SMS (Short Message Service)” (Claims 1, 14, 23).................................4

II. U.S. Patent No. 8,179,960 (Case No. 6:20-cv-00490) Claim Terms ..............................5

1. “virtual reference” (Claims 1, 2, 3, 9, 10, 15, 16, 17, 23, and 24)...........5

2. “does not represent any portion of any individual frame of the 

original video signal” (Claims 1, 9, 15, 23) ..............................................6

3. “minimize differences” ..............................................................................7

III. U.S. Patent No. 8,730,905 (Case No. 6:20-cv-00491) Claim Terms ...............................9

1. “during a time interval between data transmission intervals 

during the transmission period” (Claims 4, 15)......................................9

2. “at least one frequency channel indicator” (Claims 5, 16)...................10

3. “causing the transmission of the reservation message on each 

frequency band separately” (Claims 9, 21)............................................10

IV. U.S. Patent No. 9,294,060 (Case No. 6:20-cv-00493) Claim Terms .............................12

1. “extracting a feature vector” (Claims 1, 10)..........................................12

2. “level value is attenuated” (Claims 1, 10)..............................................14

3. “spectral shape parameter” (Claims 1, 10)............................................15

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 2 of 19
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TABLE OF AUTHORITIES

Cases

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

783 F.3d 1374 (Fed. Cir. 2015)................................................................................................... 7

Enzo Biochem, Inc. v. Applera Corp.,

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

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

572 U.S. 898 (2014).................................................................................................................... 4

Samsung Elecs. Am. v. Prisua Eng’g Corp.,

948 F.3d 1342 (Fed. Cir. 2020)................................................................................................... 1

Smith & Nephew, Inc. v. Ethicon, Inc.,

276 F.3d 1304 (Fed. Cir. 2001)................................................................................................. 15

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

669 F.3d 1362 (Fed. Cir. 2012)................................................................................................... 5

Toshiba Corp. v. Imation Corp.,

681 F.3d 1358 (Fed. Cir. 2012)................................................................................................. 15

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)................................................................................................... 1

Rules

37 C.F.R. § 42.104(b)(4)................................................................................................................. 3

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 3 of 19
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I. U.S. Patent No. 7,203,505 (Case No. 6:20-cv-00497) Claim Terms

1. “a formatter to format the received data into at least one SMS (Short 

Message Service) message” (Claim 14) / “formatting” /“formatter to 

format” (Claims 1, 14, 23)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Governed by 35 U.S.C. § 112(f)

Function: formatting the received data into at least one 

SMS (Short Message Service) message 

Indefinite under 35 U.S.C. § 112(b)1; specification fails 

to describe it;

Structure: none disclosed

Because “a formatter to format the received data into at least one SMS (Short Message 

Service) message” does not recite the words “means,” mean-plus-function construction under 

Section 112, ¶ 6, presumptively does not apply. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 

1348 (Fed. Cir. 2015). Resolving whether the term “a formatter to format the received data into at 

least one SMS message” invokes Section 112, ¶ 6, depends on whether persons skilled in the art 

would understand the claim language to refer to structure, assessed in light of the presumption that 

flows from the drafter’s choice not to use the word “means.” Samsung Elecs. Am. v. Prisua Eng’g 

Corp., 948 F.3d 1342, 1354 (Fed. Cir. 2020). The presumption stands here. 

A person of skill in the art would understand the claim language to refer to structure,

particularly by its recitation of “a mobile terminal device comprising...,” and where the 

specification provides certain exemplary embodiments. For example, the specification teaches: 

“Modern-day mobile terminals, such as mobile telephones, have been provided with the SMS 

(Short Message Service) capability.” ’505 patent, 1:66-2:1, see also Id., 3:49-50. Further, the 

specification teaches that “It is noted that SMS standards provide for sending multiple short 

1 Defendant had no problem finding the claim terms to be sufficiently definite when filing its 

petition in IPR2021-00698. See e.g., Ex. A, at 13-14, 21-23, 28-30, 36; Enzo Biochem, Inc. v. 

Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 2010) (“As a preliminary matter, we observe 

that a claim cannot be both indefinite and anticipated.”). In filing its IPR petition, “the 

petition must specify where each element of the claim is found in the prior art patents or 

printed publications relied upon” 37 C.F.R. § 42.104(b)(4) (emphasis added).

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 4 of 19
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messages which are combined by the recipient” (Id., 4:8-10), showing that the SMS standard was 

well known at the time of the invention. Next, the specification expressly discloses “the SMS 

programming in the mobile terminal” (Id., 4:26-27), further confirming that mobile terminals 

include SMS and SMS formatting capability. Finally, the specification expressly states that “the 

specific details of the SMS protocol... have not been included in the present specification for 

the sake of brevity. It is understood that these industrywide protocols are readily available 

and the details thereof are incorporated by reference herein in their entirety.” Id., 4:46-51 

(emphasis added). Therefore, as the specification expressly discloses, SMS capability, and thus 

the capability to format SMS messages, were already provided into mobile terminals at the time 

of invention. Accordingly, while the presumption stands unrebutted that Section 112, ¶ 6, does not 

apply to the claim language in question, Defendant is also wrong in arguing the specification lacks 

any written description of corresponding structure. Defendant argues that “a POSITA would not 

even understand the structure of the ‘formatter’ without disclosure in the specification.” Resp. at 

9. However, Defendant’s argument is wholly conclusory and without any support. To the contrary, 

as discussed above and as the specification discloses, mobile phones already had SMS capability, 

and SMS standards were well known and readily available. In other words, as the specification 

discloses, a POSITA would understand the mobile phone to be the structure referred to by the 

claim language.2 Further, Defendant has found these terms to be sufficiently definite at least 

through the filing of the petition in IPR2021-00698. See e.g., Ex. A, at 21-23, 28-30, 36.

Similarly, and for the same reasons as discussed above, the terms “formatting” and 

“formatter to format” should be given their plain and ordinary meaning. 

2. “data message receiver” (Claim 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)3

2 In addition, Defendant itself admits that “‘SMS messages’ [] would be understood by a person

of ordinary skill to be cellular based” Resp. at 10 (emphasis added). Thus, Defendant 

contradicts its own (conclusory) allegations regarding a POSITA. 

3 Defendant had no problem finding the claim term to be sufficiently definite when filing its 

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 5 of 19
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Lack of Written description under 35 U.S.C. §

112(a)

The Court has provided guidance that “the Court’s general practice is to separate 112, 1/a 

issues from claim construction.” Ex. D at 1. Therefore, it is WSOU’s understanding that the Court 

will not address the merits of Defendant’s arguments regarding lack of written description under 

35 U.S.C. § 112(a) in these Markman proceedings. Nonetheless, out of an abundance of caution, 

courts in this district have instructed that “patent validity arguments like lack of enablement and 

lack of written description are not proper during claim construction proceedings.” Opening Br. at 

6-7 (collecting cases). Even if the Court is inclined to consider the merits of Defendant’s arguments 

outside the context of a motion for summary judgment, Defendant fails to meet the exacting 

standard of clear and convincing evidence. Indeed, Defendant offers no evidence whatsoever. 

Defendant relies exclusively on the conclusory attorney argument (which is not itself evidence) 

that “a POSITA would not even understand the claimed ‘data message receiver’ is hardware or 

software.” Resp. at 10. Defendant further relies on the conclusory attorney argument of what 

Defendant speculates is or is not “a generic function of a mobile terminal device.” Resp. at 10. 

Tellingly, Defendant does not even attempt to explain why exemplary disclosure in the written 

description is somehow insufficient. 

As to its arguments of indefiniteness, Defendant also overlooks the claim language and 

specification, which includes ample disclosure showing that the claim term is not indefinite. For

example, Claim 14 itself recites “a mobile terminal device comprising...,” and Claim 21, further 

recites “The device of claim 14, wherein the data receiver receives data messages via one of an IR 

(Infrared) or Bluetooth communication link.” ’505 patent, 6:1-3. As the claims themselves 

disclose, the data message receiver is a mobile terminal device capable of a communication link 

such as IR or Bluetooth. Furthermore, the specification also teaches that “there are personal 

petition in IPR2021-00698. See e.g., Ex. A, at 13-14, 26-28; Enzo, 599 F.3d at 1332 (“As a 

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

filing its IPR petition, “the petition must specify where each element of the claim is found in 

the prior art patents or printed publications relied upon.” 37 C.F.R. § 42.104(b)(4) (emphasis 

added).

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 6 of 19
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portable server devices presently available which only have short range connection capabilities, 

such as IR (Infrared) or Bluetooth. Accordingly, at present, they are unable to synchronize data 

with remotely located terminals which are out of their limited communication range.” Id., 1:57-

62. The specification teaches that “Many such modern-day mobile terminals include IR or 

Bluetooth capability which allows them to communicate with the aforementioned personal 

portable servers.” Id., 2:9-12. Accordingly, in an exemplary embodiment, the specification teaches 

that “[a] personal server 160, for example, is connected to the mobile terminal 100 via a short 

range connection such as Bluetooth or IR.” Id., 3:4-6. This is illustrated by the following excerpted 

part of Figure 1: 

As shown above, the intrinsic evidence informs one of skill in the art at the time of the 

invention “about the scope of the invention with reasonable certainty.” Nautilus, Inc. v. Biosig 

Instruments, Inc., 572 U.S. 898, 910-11 (2014). Defendant has found this term to be sufficiently 

definite at least through the filing of the petition in IPR2021-00698. See e.g., Ex. A, at 26-28.

3. “SMS (Short Message Service)” (Claims 1, 14, 23)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Cellular based messages of limited size 

consisting of text and numbers.

Defendant admits that no construction is necessary. First, Defendant expressly admits 

that SMS messages “would be well understood by a person of ordinary skill in the art to be 

cellular-based.” Resp. at 10. Thus, as Defendant admits, SMS messages were well known to a 

POSITA, and this term should get its plain and ordinary meaning. Second, Defendant argues that 

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 7 of 19
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the patentee acted as his own lexicographer (Resp. at 11-12); however, Defendant merely points 

to an exemplary embodiment. “To act as his/her own lexicographer, the patentee must ‘clearly 

set forth a definition of the disputed claim term,’ and ‘clearly express an intent to define the 

term.’” Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). 

Defendant has failed to meet this exacting standard. 

Furthermore, while Defendant’s intention as to “cellular-based” is still confusing, 

Defendant appears to expressly contradict its own contention that SMS messages are exclusively 

cellular-based in stating that “a gateway [] is required for conversion from a cellular based SMS 

message to IP-based message.” Resp. at 12 (emphasis added). Regardless, the specification 

provides that SMS is a store and forward service, “that is, short messages are not sent directly 

from sender to recipient but rather are sent via an intermediary SMS center instead.” ’505 patent, 

2:1-7. Moreover, the specification expressly teaches that “Modern-day mobile terminals, such as 

mobile telephones, have been provided with the SMS (Short Message Service) capability.” Id., 

1:66-2:1, see also, Id., 3:49-50. Further, the specification teaches that “It is noted that SMS 

standards provide for sending multiple short messages which are combined by the recipient” (Id., 

4:8-10), showing that the SMS standard was well known at the time of the invention. Finally, the 

specification expressly states that “the specific details of the SMS protocol... have not been 

included in the present specification for the sake of brevity. It is understood that these 

industrywide protocols are readily available and the details thereof are incorporated by reference 

herein in their entirety.” Id., 4:46-51. Accordingly, no construction of this term is necessary. 

II. U.S. Patent No. 8,179,960 (Case No. 6:20-cv-00490) Claim Terms

1. “virtual reference [data]” (Claims 1, 2, 3, 9, 10, 15, 16, 17, 23, and 24)

WSOU’s Proposed Construction Defendant’s Proposed Construction

a group of pixels (e.g., a block) that is used as 

reference material for encoding portions of the video 

signal (e.g., a motion-compensated inter-predicted 

block), but that does not comprise or represent any 

portion of the actual video sequence to be displayed.

A group of pixels used as reference 

material for encoding portions of the 

video signal, but that does not comprise 

or represent any portion of the actual 

video sequence to be displayed.

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 8 of 19
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Defendant admits that its proposed construction is a paraphrasing of the express definition 

provided by the specification. Resp. at 13. Defendant’s own citation shows that the term defined 

is “virtual reference data.” Id. citing ’960 patent, Abstract. Defendant then somehow goes on to 

accuse WSOU of “[r]edrafting the claims” (id), despite WSOU’s proposal being identical to the 

express lexicography from the specification. To the extent Defendant’s argument can be 

understood, Defendant appears to support is paraphrasing of the lexicography by citing to an 

exemplary embodiment in which Defendant emphasizes a different term (“frame (or slice)” versus 

“data”) (Rep. at 14). This term should be given the exact definition recited by the specification: “a

group of pixels (e.g., a block) that is used as reference material for encoding portions of the video 

signal (e.g., a motion-compensated inter-predicted block), but that does not comprise or represent 

any portion of the actual video sequence to be displayed.” ’960 patent, 2:17-22; Abstract. 

2. “does not represent any portion of any individual frame of the 

original video signal” (Claims 1, 9, 15, 23)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Data generated based on a portion of a video signal but 

not to be displayed with the video signal.

The full claim phrase provides all of the context and requirements necessary, for example, 

in Claim 1, the relevant portion recites: “wherein the generated virtual reference data does not 

represent any portion of any individual frame of the original video signal which is to be displayed 

in said subsequent video display thereof.” ’960 patent, 12:2-5; see also Id., 13:13-16 (Claim 9), 

14:5-8 (Claim 15), 15:16-19 (Claim 23). Defendant’s proposed construction fails to address the 

entire phrase and at best attempts to re-write the claim language, which is unnecessary and 

unhelpful. Defendant argues that “a POSITA would not understand the meaning of the remainder 

of the claim language” (Resp. at 15), but Defendant provides nothing for support and instead 

merely makes conclusory attorney argument. Defendant further contrives various straw-man 

arguments regarding the plain language of the claims (Id.); however, Defendant cites to nothing to 

support its contrived concerns. 

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 9 of 19
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3. “minimize differences”

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b) 4

Defendant argues that this is a term of degree. Regardless of whether Defendant is correct, 

the specification provides a standard for measuring that degree. Biosig Instruments, Inc. v. 

Nautilus, Inc., 783 F.3d 1374, 1378 (Fed. Cir. 2015). This standard must "inform those skilled in 

the art about the scope of the invention with reasonable certainty." Id. at 1379 (quoting Nautilus 

Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 (2014)). "The degree of precision necessary 

for adequate claims is a function of the nature of the subject matter." Id. at 1382 (quoting Miles 

Labs., Inc. v. Shandon, Inc., 997 F.2d 870, 875 (Fed. Cir. 1993)) (quotation modification marks 

omitted). But "absolute or mathematical precision is not required." Id. at 1381 (quoting Interval 

Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371-72 (Fed. Cir. 2014)). More specifically, the 

specification provides the standard for “minimizing differences.” For example, the specification, 

first teaches that: 

“Most major standard video codecs (i.e., coders and decoders) 

achieve a data compression advantage over still image coding 

techniques by using a block-based, motion-compensated prediction 

scheme. Such schemes are fully familiar to those of ordinary 

skill in the art...

....

The second method is to code a block by providing a pointer to a 

similar, previously coded block which is used as a reference, and 

to further provide an error block that indicates the differences

between the reference and the block to be coded (i.e., intercoding).” ’960 patent, 1:15-34 (emphasis added). 

The above passage, from the BACKGROUND OF THE INVENTION section, shows that 

indicating the differences between a reference block and a block to be coded was well known in 

4 Defendant had no problem finding the claim term to be sufficiently definite when filing its 

petition in IPR2021-00696. See e.g., Ex. B, at 12-13, 67-70; Enzo, 599 F.3d at 1332 (“As a 

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

filing its IPR petition, “the petition must specify where each element of the claim is found in 

the prior art patents or printed publications relied upon” 37 C.F.R. § 42.104(b)(4) (emphasis 

added).

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 10 of 19
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the art. Defendant argues that video coding standards listed in the specification “have nothing to 

do with minimizing differences...” Resp. Br. at 17 (emphasis removed). However, Defendant fails 

to support its contention that the listed video standards do not describe the required minimizing.

Defendant also makes the mere conclusory attorney argument that the above description “has 

nothing to do with minimizing differences...” Id. But Defendant misses the point, that the 

specification teaches that determining differences was well known in the art and a person of skill 

in the art would be able to minimize those differences. Then the specification teaches: 

“In the H.264 standard encoder, for example, the Context-Adaptive 

Variable Length Coding (CAVLC) entropy coder (which is also 

familiar to those skilled in the art) is used as a lossless compression 

method well suited for block-based video coding. In a typical case, 

the error is a quantized difference between the discrete cosine 

transform (DCT) coefficients of the predicted pixels and the DCT 

coefficients of the actual pixels. (The use of DCT coefficients in 

video coding is also fully familiar to those of ordinary skill in the 

art.) In general, the encoding is more efficient if there are many 

differences which are equal to zero, but it is still highly efficient 

if the (absolute value of the) difference of select non-zero terms 

is equal to 1. An occasional absolute difference greater than 1 

in these select terms breaks the efficiency of the entropy coder 

and requires a disproportionately large number of bits to 

encode.” ’960 patent, 3:62-4:10 (emphasis added). 

As shown by the passages above, the specification provides a standard for determining 

whether a difference is minimized, which is where the absolute value of the difference is as close 

to zero as possible (as an example, 1 or less). Therefore, this term is not indefinite. Defendant 

complains that “the ‘difference’ described in the above-noted paragraph is completely different 

from the [difference] as recited in the claims.” Resp. at 18. However, even if Defendant is correct 

(and WSOU does not so concede), Defendant again misses the point. Specifically, Defendant has

failed to show that a person of skill in the art would not understand how to “minimize differences” 

based on the teachings in the specification – specifically minimizing differences means to get as 

many differences as close to zero as possible. Moreover, Defendant has found this term to be 

sufficiently definite at least through the filing of the petition in IPR2021-00696. See e.g., Ex. B, at 

67-70.

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 11 of 19
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III. U.S. Patent No. 8,730,905 (Case No. 6:20-cv-00491) Claim Terms

1. “during a time interval between data transmission intervals during 

the transmission period” (Claims 4, 15)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

The claim language itself is fully descriptive, and the specification also provides various 

exemplary embodiments, such as those illustrated by Figure 3, where the specification teaches: 

“Upon transmitting the reservation message, the reserving STA may transmit the reservation 

response message (OK in the Figures) to the TXOP holder. The reservation response message 

may be communicated (transmitted and received) during a time interval between data 

transmission intervals during the transmission opportunity.” ’905 patent, 8:58-61 (emphasis 

added); see also Id., 8:7-61, Figs. 3-9. Figure 3 illustrates that the reservation response message 

(“OK”) is transmitted and received in a time period during the transmission period (TXOP) and 

between data transmission intervals (DATA):

Defendant contrives a straw-man argument that allegedly shows “ambiguity” (Resp. 19-

21); however, Defendant provides nothing for support of its contrived argument. Further, the 

embodiment illustrated by Figure 3, above (which Defendant annotates) shows that a reservation 

response (“OK”) message is not transmitted during the second “DATA” transmission, but data is 

being transmitted at that time. Further, not only is there no support for Defendant’s contrived socalled “ambiguity,” even if a time interval between the first and third “DATA” transmission is 

considered, Figure 3 above illustrates two instances where a reservation response (“OK”) message 

is transmitted in that interval between the first and third data transmission intervals. 

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 12 of 19
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2. “at least one frequency channel indicator” (Claims 5, 16)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

Defendant again contrives a straw-man argument for an issue that doesn’t exist. See Resp. 

at 21. The full claim term is: “at least one frequency channel indicator indicating the at least one 

additional frequency band that is to be reserved by the second wireless communication 

apparatus.” See e.g., ’905 patent, 19:24-27 (Claim 5) (emphasis added), 21:3-6 (Claim 16). The 

plain language of the claim itself provides that the “at least one frequency channel indicator” is 

an indicator of at least one additional frequency band. Thus, despite Defendant’s contrived 

arguments, the claim language itself expressly provides for at least one (and possibly more than 

one) frequency channel indicator, each of which may indicate at least one (and possibly more than 

one) additional frequency band. Further, the specification teaches that the channelization rules for 

802.11ac radios define the frequency channels available, having a primary channel and zero or 

more secondary channels (Id., 1:21-28), and in an exemplary embodiment where, after acquiring 

a transmission period on a first frequency band, seeking to reserve additional frequency bands by 

sending a reservation request message which includes at least one indicator that indicates at least 

one additional frequency band that is to be reserved (Id., 1:33-63). 

3. “causing the transmission of the reservation message on each 

frequency band separately” (Claims 9, 21)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

To the extent Defendant’s argument can be understood, Defendant appears only to argue 

that Defendant does not understand the meaning of the word “separately.” Resp. at 23.5 The claim 

language is self-explanatory, but for full context, the full claim term recites: “wherein second 

wireless communication apparatus is requested to reserve a plurality of frequency bands, the 

5 In addition, Defendant cites to nothing for support of its argument, instead, Defendant only 

makes the conclusory assertion that “separately” is “not amenable to construction” and that 

the specification “also fails to explain the meaning of ‘separately’.” Resp. 23. Both of 

Defendant’s mere conclusory statements are demonstrably false.

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 13 of 19
11

method further comprising causing the transmission of the reservation message on each frequency 

band separately.” ’905 patent, 20:1-5 (Claim 9), 21:56-61 (Claim 21). As expressly recited by the 

claim language, where it is requested to reserve a plurality of frequency bands, the reservation 

message (not necessarily identical) is separately transmitted on each frequency band, which 

provides for certain advantages. For example, the specification discloses various exemplary 

embodiments, such as the one discussing Figures 3 and 4, and Figure 5: 

“In the embodiments of FIGS. 3 and 4, the reserving STA is 

configured to reserve the channels by transmitting the reservation 

messages individually on the channels being reserved (one 

reservation message at a time).” Id., 10:20-23.

“In the embodiment of FIG. 5, the reserving STA is configured 

to transmit the reservation messages concurrently on a plurality of 

channels that are to be reserved. Accordingly, each reservation 

message comprises separate PLCP and MAC (Medium Access 

Control) headers. An advantage of providing separate 

messages, e.g. 20 MHz bandwidth, is that even those 

communication apparatuses supporting only IEEE 802.11a are able 

to receive the reservation messages and apply the NAV setting.” 

Id., 10:23-31 (emphasis added). 

Figures 3 and 5 (reproduced below) illustrate the above embodiments, where the 

reservation messages (RES) are transmitted one at a time (Figure 3), and where the reservation 

messages are transmitted concurrently (Figure 5), but in both cases, the reservation messages are 

transmitted on each frequency band separately: 

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 14 of 19
12

As another example, in further discussing Figure 3, the specification recites that in the 

situation where the TXOP holder decides to try to reserve additional transmission band(s), the 

TXOP holder attempts to reserve the tertiary or quaternary channel and instructs a terminal station 

(STA) to reserve the tertiary and quaternary channels, and upon detection of the channels 

becoming available, the STA transmits the reservation message (RES) separately on both the 

tertiary and quaternary channels as shown in Figure 3. Id., 9:11-35.

IV. U.S. Patent No. 9,294,060 (Case No. 6:20-cv-00493) Claim Terms

1. “extracting a feature vector” (Claims 1, 10)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b) 6

Defendant merely concludes that a “POSITA would not understand whether ‘extracting a 

feature vector from the audio signal’ means extracting an already computed feature vector from 

the audio signal or a feature vector using the audio signal.” Resp. at 25. Defendant’s argument is 

nonsensical (and without any support), but to the extent it can be understood, Defendant is wrong. 

The specification expressly teaches how to extract a feature vector from the audio signal. Instead 

of addressing the intrinsic evidence, Defendant instead ignores each and every example disclosed 

by the specification. 

6 Defendant had no problem finding the claim term to be sufficiently definite when filing its 

petition in IPR2021-00697. See e.g., Ex. C, at 19-20, 26-29; Enzo, 599 F.3d at 1332 (“As a 

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

filing its IPR petition, “the petition must specify where each element of the claim is found in 

the prior art patents or printed publications relied upon” 37 C.F.R. § 42.104(b)(4) (emphasis 

added).

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 15 of 19
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The specification and the claims provide that an audio signal comprises a plurality of 

frequency components (’060 patent, 2:14-15, Abstract, 29:4-5 (Claim 1), 30:15-17 (Claim 10), and 

a feature vector “comprises at least one frequency domain component feature and at least one time 

domain component feature. Id., 2:16-17, Abstract, 29:6-9 (Claim 1), 30:18-21 (Claim 10). The 

specification also provides numerous exemplary embodiments of extracting a feature vector. For 

example, in one exemplary embodiment the specification teaches that feature extractor 407 “can 

in some embodiments be used to extract features from both the audio signal frame and the 

frequency domain transformation of the audio signal frame.” Id., 10:39-44. It also teaches that in 

at least one embodiment, the frequency domain features can be extracted at least in part by 

determining the power spectral density of the frequency coefficients in the input signal. Id., 10:64-

11:2. Where a formula for mapping the frequency components from Hertz to the corresponding 

frequency component in the mel scale is provided. Id., 11:16-12:27. Where the sub band energies 

corresponding to the first five sub bands can form the first five features of the feature vector 

extracted. Id. The specification further teaches that feature extractor 407 can in some embodiments 

also extract further frequency domain features from the frequency domain signal, where the further 

frequency domain features can be based on the centroid of the spectrum of the frequency domain 

signal. See Id., 12:29-13:24. Where the centroid of the frequency domain signal spectrum can form 

the sixth component of the extracted feature vector, and a seventh frequency domain based feature 

vector may be derived from determining the spectral flatness of the input audio signal frame. Id., 

12:54-13:16. 

Next, the specification teaches that feature extractor 407 “can in some embodiments also 

extract time domain based features from the audio signal frame by processing the time domain 

signal conveyed on the connection.” Id., 13:16-19. Where the time domain based feature extracted 

by the feature extractor can be a gradient index based on the sum of magnitudes of the gradient of 

the speech signal in the time domain, and where the specification provides detail on how to 

determine such gradients. Id., 13:20-64. Further, the specification teaches that a second time based 

feature may be extracted which is dependent on the energy ratio of the audio signal frame, and the 

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 16 of 19
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specification also provides detail on how to determine such a feature. Id., 13:65-14:9. The 

specification also teaches a third time based feature for the audio signal which by determining 

whether the signal exhibits active or inactive regions, and where the specification discloses details 

on how to make such a classification. Id., 14:10-52. In summary, the specification provides 

numerous and detailed teachings regarding processing the audio signal frame in both time and 

frequency domains in order to extract the feature vector. Moreover, Defendant has found this term 

to be sufficiently definite at least through the filing of the petition in IPR2021-00697. See e.g., Ex. 

C, at 26-29.

2. “level value is attenuated” (Claims 1, 10)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b) 7

The plain language of the claims themselves provide that the sub band energy level is 

reduced when the power of the audio signal approaches an estimate of the level of noise in the 

audio signal. The specification also provides various exemplary embodiments showing the same, 

including an exemplary embodiment describing an adaptive attenuation technique that can reduce 

perceived noise in an artificially generated high band signal by filtering the energy levels 

associated with each sub band of the artificially generated high band signal through the use of a 

band energy smoother. Id., 18:8-46. Where the sub band energy smoother counteracts artefacts 

produced as a result of a neural network selecting sub band energy levels which are too high. Id., 

17:34-40. Defendant argues that this term is indefinite because it is a term of degree. Resp. 25-28. 

Defendant is wrong. All that is required is an attenuation. In other words, by the plain language of 

the claims, and in light of the specification, any attenuation is sufficient to satisfy this term. 

Defendant has found this term to be sufficiently definite (and not a term of degree) at least through 

7 Defendant had no problem finding the claim term to be sufficiently definite when filing its 

petition in IPR2021-00697. See e.g., Ex. B, at 19-20, 37-40; Enzo, 599 F.3d at 1332 (“As a 

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

in filing its IPR petition, “the petition must specify where each element of the claim is found

in the prior art patents or printed publications relied upon” 37 C.F.R. § 42.104(b)(4) 

(emphasis added).

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 17 of 19
15

the filing of the petition in IPR2021-00697, where Defendant argues any “damping” is sufficient. 

See e.g. Ex. C. at 37-40. Furthermore, the specification also includes an exemplary embodiment 

teaching that the sub band energy levels can “in some embodiments be attenuated according to the 

difference between the energy of the current audio signal frame and the noise floor estimate using 

piecewise linear mapping.” ’060 patent, 18:36-40. 

3. “spectral shape parameter” (Claims 1, 10)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning A sub band energy level value or a sub band gain factor 

based on the sub band energy level value.

Defendant’s proposed construction should be rejected for improperly importing limitations 

not required in the claims or specification. Toshiba Corp. v. Imation Corp., 681 F.3d 1358, 1369 

(Fed. Cir. 2012) (“Absent disclaimer or lexicography, the plain meaning of the claim controls.”).

More specifically, the specification states that the spectral shape parameter “may be a sub band 

energy level value” and “may be a sub band gain factor based on the sub band energy level value”

(’060 patent, 2:55-58 (emphasis added)), but the specification expressly does not limit spectral 

shape parameter to just those two parameters through the use of the phrase “may be.” Instead, the 

specification recites that “the at least one spectral shape parameter corresponds to a sub band signal 

comprising frequency components which belong to a further plurality of frequency components” 

(Id., 2:19-23); thus the specification expressly does not limit spectral shape parameter as 

Defendant proposes. Defendant’s arguments amount to calling for patents to include a dissertation 

on the underlying subject matter while completely disregarding the state of the art. Resp. at 28-29.

Defendant’s arguments are wholly conclusory and fails to support its argument that giving this 

term its plain and ordinary meaning would “expand the scope without a boundary.” Resp. at 29;

see also Smith & Nephew, Inc. v. Ethicon, Inc., 276 F.3d 1304, 1311 (Fed. Cir. 2001) (“claims are 

intended to provide a concise statement of the claimed invention as distinguished from what has 

gone before; a claim is not a handbook for practice of the invention”).

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 18 of 19
16

Dated: April 23, 2021 Respectfully submitted,

By: /s/ Ryan Loveless

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Brett A. Mangrum 

Texas Bar No. 24065671 

Travis L. Richins 

Texas Bar No. 24061296 

Jeffrey Huang 

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Brett@EtheridgeLaw.com 

Travis@EtheridgeLaw.com 

Jhuang@EtheridgeLaw.com 

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

Counsel for Plaintiff WSOU Investments, LLC

CERTIFICATE OF SERVICE

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

via U.S. District Court [LIVE]- Document Filing System, to all counsel of record, on April 23, 

2021.

/s/ Ryan Loveless

Ryan Loveless

Case 6:20-cv-00490-ADA Document 68 Filed 04/23/21 Page 19 of 19