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.

C.A. NO. 6:20-cv-00489-ADA

C.A. NO. 6:20-cv-00492-ADA

C.A. NO. 6:20-cv-00495-ADA

DEFENDANTS’ SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 1 of 12
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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. U.S. PATENT NO. 7,487,240 (CASE NO. 6:20-CV-00489-ADA) ...................................1

A. Disputed Term 5: “the connectivity verification result(s) associated with 

the alarm” (Claims 1, 6, and 13)..............................................................................1

III. U.S. PATENT NO. 8,147,071 (CASE NO. 6:20-CV-00492-ADA) ...................................3

A. Disputed Term 5: “a movement sensor configured to detect movement of 

the apparatus and/or a projector” (Claim 9).............................................................3

IV. U.S. PATENT NO. 9,258,232 (CASE NO. 6:20-CV-00495-ADA) ...................................4

A. Disputed Term 5: “instructions for receiving, by a controller of the traffic 

flow control system, a backpressure signal, wherein the back pressure 

signal indicates a period of congestion” (Claim 14)................................................4

1. The Term is Governed by § 112(f) as Means-Plus-Function ......................4

2. The Limitations are Governed by 35 U.S.C. § 112(f) and Fails to 

Provide Support for the Claimed Function ..................................................6

V. CONCLUSION....................................................................................................................7

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TABLE OF AUTHORITIES

Page(s)

Cases

Cypress Lake Software, Inc. v. Samsung Electronics America, Inc.,

382 F. Supp. 3d 586 (E.D. Tex. May 10, 2019).....................................................................5, 6

Nautilus Inc. v. Biosig Instruments, Inc.,

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

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005) (en banc) .............................................................................2, 3

Williamson v. Citrix Online, LLC,

792 F.3d 1339, 1350 (Fed. Cir. 2015)........................................................................................5

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 3 of 12
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Pursuant to the Court’s First Amended Scheduling Order (Dkt. No. 45),

1 the Court’s 

February 26, 2021 e-mail order, and the Court’s April 18, 2021 e-mail order, Defendants ZTE 

Corporation, ZTE (USA) Inc., and ZTE (TX), Inc. (collectively “ZTE”) hereby submits the 

following supplemental claim construction brief.

I. Introduction2

Three supplemental terms are briefed herein, one from each of U.S. Patent Nos. 7,487,240; 

8,147,071; and 9,258,232. None of these three patents share a common specification, and each is 

directed towards different technology. See also Dkt. 67.

II. U.S. Patent No. 7,487,240 (Case No. 6:20-cv-00489-ADA)

A. Disputed Term 5: “the connectivity verification result(s) associated with the 

alarm” (Claims 1, 6, and 13)

WSOU’s Proposed Construction Defendants’ Proposed Construction

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

The claimed “connectivity verification result(s) associated with the alarm” is insolubly 

ambiguous and has no ascertainable meaning. Under the Phillips standard, the analysis begins 

with the claim terms. Here, the claims fail to provide any meaning to what “connectivity 

verification result(s) associated with the alarm” means. (Emphasis added). The claims provide no 

explanation of what it means for “the connectivity verification result(s)” to be “associated with the 

alarm” and nothing to differentiate “connectivity verification result(s) that are not “associated with 

the alarm.” In fact, without any definition of what being “associated” means—much less what 

“associated” means with the alarm—it is impossible to determine what it means to “identify Layer1 There are 11 pending cases. Citations throughout refer to new WDTX Case Nos. -00487 through 

-00497, and specific citations reference to the docket for WDTX Case No. -00489. 2 ZTE hereby incorporates the Legal Standards section from Defendants’ Claim Construction 

response brief. See Dkt. 67, pp. 2-3.

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 4 of 12
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2 and Layer-3 objects within the containment hierarchy affected by the connectivity verification 

results associated with the alarm.” Specifically, it is impossible to determine what it means for the 

containment hierarchy to be “affected by the connectivity verification results,” because nothing 

defines the “associated” term, nor how the connectivity verification results are “associated” with 

the alarm. As shown below, exemplary claim 1 contains no information for what it means for 

connectivity verification results to be “associated with the alarm.”

1. A network management connectivity verification framework comprising: 

a connectivity verification server to perform unattended connectivity verification jobs; 

and 

a connectivity verification application to: 

define connectivity verification jobs capable of verifying connectivity in the 

network relating to at least Layer-2 and Layer-3 objects within a given 

containment hierarchy for the network, 

control the connectivity verification server to perform the defined connectivity 

verification jobs, wherein the performing generates at least one of 

connectivity verification results, 

display the connectivity verification results, 

receive a user-input specification of a connectivity verification threshold, 

compare the connectivity verification results to the specified connectivity 

verification threshold, 

generate an alarm when the comparison shows that at least one of the connectivity 

verification results has reached the specified connectivity verification 

threshold, 

identify Layer-2 and Layer-3 objects within the containment hierarchy affected by 

the connectivity verification results associated with the alarm, and 

display the identified Layer-2 and Layer-3 objects.

Next, we look to the specification, but this term is not used in the specification at any point. 

See the ’240 patent. The specification recites where the “connectivity verification results, including 

alarm information, are further used to generate a network map displaying selected connectivity 

verification results.” Id., 6:43-46. Nothing in this recitation, however, provides what it means for 

connectivity verification results to be “associated with the alarm.” And, the claims do not contain 

this limitation—that the connectivity verification results “include alarm information”—and thus, 

it would be error to read this limitation into the claims. The specification also recites “[t]he 

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 5 of 12
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connectivity verification application 502 uses the connectivity verification results and alarm 

information to display 640 and highlight Layer-2 (506) and Layer-3 (504) objects affected by the 

alarm.” Id., 9:37-41. And likewise, this recitation also does not provide what it means for the 

connectivity verification results to be “associated with the alarm.”

Finally, we turn to the prosecution history. The subject “alarm” term was first introduced 

in an amendment four years after the application was filed, and was introduced in response to a 

third office action. Dkt. 67, Ex. 10, ’240 Prosecution History at 272-288. At the time, in order to 

traverse a 35 U.S.C. 112(b) rejection, Applicant stated that “reading the as-examined claims 1 and 

6, in their entirety, a person of ordinary skill in the art would clearly understand the alarm to be 

generated as a result of the recited connectivity thresholds not being met.” Id. at 281. Applicant’s

statement, however, does not clarify what it means for “the connectivity verification result(s)” to 

be “associated with the alarm.” Even if it did, this statement cannot be relied on because it 

contradicts exemplary claim 1 that recites to “generate an alarm when the comparison shows that 

at least one of the connectivity verification results has reached the specified connectivity 

verification threshold.” Claim 1 (emphasis added). Because the claim and the specification fail to 

inform with reasonable certainty what “the connectivity verification results associated with the 

alarm” is, this term is indefinite. Nautilus, 572 U.S. 898 at 910.

III. U.S. Patent No. 8,147,071 (Case No. 6:20-cv-00492-ADA)

A. Disputed Term 5: “a movement sensor configured to detect movement of the 

apparatus and/or a projector” (Claim 9)

WSOU’s Proposed 

Construction

Defendants’ Proposed 

Construction

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

The term “a movement sensor configured to detect movement of the apparatus and/or a 

projector” is indefinite because the claims fail to distinctly point out what is being claimed. Claim 

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9 fails to recite whether it claims “a movement sensor configured to detect movement of the 

apparatus and a projector” or “a movement sensor configured to detect movement of the apparatus 

or a projector.” This is ambiguous because the claim’s use of the phrase “and/or” could be 

interpreted to mean both of these terms equally. But, this limitation is critical for the claim because

it is impossible for a PHOSITA to ascertain whether the claimed “movement sensor” is configured 

to detect movement of both the claimed “apparatus and a projector” or if it is configured to detect 

movement of the claimed “apparatus or a projector.” Without any further information in the claim, 

the claim term is ambiguous.

The specification provides a recitation of the same claim language used in claim 9. The

’071 patent, 2:62-67 recites: “a move-ment sensor configured to detect movement of the apparatus 

and/or a projector.”. The ’071 patent, 2:62-67. However, the same recitation does not resolve the 

ambiguity, and nothing in the remainder of the specification resolves this ambiguity.

IV. U.S. Patent No. 9,258,232 (Case No. 6:20-cv-00495-ADA)

A. Disputed Term 5: “instructions for receiving, by a controller of the traffic 

flow control system, a backpressure signal, wherein the back pressure signal 

indicates a period of congestion” (Claim 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

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

Function: receiving, by a controller of the traffic flow control 

system, a backpressure signal, wherein the back pressure signal 

indicates a period of congestion

Indefinite under 35 U.S.C. § 112(b); 

Structure: none disclosed. 

1. The Term is Governed by § 112(f) as Means-Plus-Function

This term should be construed under 35 U.S.C. § 112 (f) because the term “instructions” is 

a nonce word that recites no structure by itself. Indeed, “[g]eneric terms such as ‘mechanism,’ 

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‘element,’ ‘device,’ and other nonce words that reflect nothing more than verbal constructs may 

be used in a claim in a manner that is tantamount to using the word ‘means’ because they ‘typically 

do not connote sufficiently definite structure’ and therefore may invoke § 112, para. 6.” Williamson 

v. Citrix Online, LLC, 792 F.3d 1339, 1350 (Fed. Cir. 2015) (citing Mass. Inst. of Tech. & Elecs. 

for Imaging, Inc. v. Abacus Software, 462 F.3d 1344, 1354 (Fed.Cir.2006); M.P.E.P. § 2181). The 

term “instruction” merely means an order and carries the same breadth of other nonce words, such 

as “means,” “device,” “module,” or similar terms, that reflect nothing more than verbal constructs. 

The term “instruction” denotes no structure. Like the term ‘module” found to be a nonce word in 

Williamson, “instructions” is nothing more than “a generic description for software or hardware 

that performs a specified function.” Id. No structure is indicated by use of the term “instructions,” 

demonstrated by the lack of difference in claim language if the term “instructions” in claim 14 is 

replaced by the term “means” or “module.” Id.

WSOU apparently construes “instructions” as “code,” or “program code,” Dkt. 60, WSOU 

Opening Brief, pp. 18-19, although the words are not synonymous. The term “instructions” is a 

broader term because code is text using the protocol of a particular computer language whereas 

“instructions” are orders. Although code is generally thought to be a series of instructions, 

instructions are not necessarily code.

As shown below, claim 14 includes only a bare recital of “instructions for” four times in 

repetition, indicating the use of a means-plus-function recitation. Cypress Lake Software, Inc. v. 

Samsung Electronics America, Inc., 382 F. Supp. 3d 586, 614 (E.D. Tex. May 10, 2019).

14. A non-transitory machine-readable storage medium encoded with instructions for

execution by a traffic flow control system for performing flow control on a flow of data 

packets for transmission over a link, the non-transitory machine-readable storage medium 

comprising:

instructions for receiving, by a controller of the traffic flow control system, a 

backpressure signal, wherein the backpressure signal indicates a period of 

congestion;

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 8 of 12
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instructions for determining, by the controller of the traffic flow control system, at 

least one weighting factor to be applied to the flow of data packets based on the 

received backpressure signal; and

instructions for adjusting an amount of rate limiting applied to at least a portion of 

the flow of data packets based on both the determined at least one weighting 

factor and a content of the backpressure.

(emphasis added).

Nothing in the claim provides further structure for the term “instructions,” and the recital 

of this term is not a specific structure for reciting the claimed function because it is repeated four 

times. Instead, the structure for the term “instructions” here is generic, and it must be to 

accommodate each of the four different functions recited in claim 14. The term “instructions” is 

merely a placeholder word, or a nonce word. Further, the specification provides no structural 

meaning for “instructions for” or to distinguish the “instructions” recited here from generic 

software. In a similar situation, courts have applied means-plus-function. Cypress Lake Software, 

382 F. Supp. 3d at 614 (finding that recitations of “code for” is governed by 35 U.S.C. 112 (f)).

2. The Limitations are Governed by 35 U.S.C. § 112(f) and Fails to 

Provide Support for the Claimed Function

Because the limitations are governed by 35 U.S.C. § 112(f), the specification must disclose 

a clearly linked function. It does not. See generally, the ’232 patent. Potential structural terms 

“code,” “program,” “instructions,” “computer,” “orders,” and “interface” are not recited or 

discussed in the specification. Thus, nothing links the recited “instructions” to any structure. 

Further, no algorithms or any other discussion of these terms is in the specification to shine light 

on a clearly linked function. The specification even fails to address any sort of “machine-readable 

storage medium” on which claim 14 recites that the instructions are stored. Thus, no structure is 

recited in the specification, and no structure with clearly linked functions is recited. Thus, this term 

is invalid for indefiniteness as it fails to inform with reasonable certainty what is claimed. Nautilus, 

572 U.S. 898 at 910. Accordingly, the claim terms are indefinite.

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V. CONCLUSION

For the foregoing reasons, Defendants request that the Court adopt Defendants’ proposed 

constructions.

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 10 of 12
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DATED: April 23, 2021 Respectfully submitted,

/s/Lionel M. Lavenue 

Lionel M. Lavenue 

Virginia Bar No. 49,005

lionel.lavenue@finnegan.com 

FINNEGAN, HENDERSON, FARABOW, 

GARRETT & DUNNER, LLP

1875 Explorer Street, Suite 800

Reston, VA 20190

Phone: (571) 203-2700

Fax: (202) 408-4400

ATTORNEY FOR DEFENDANTS

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 11 of 12
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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s 

CM/ECF system on April 23, 2021.

/s/Lionel M. Lavenue 

 Lionel M. Lavenue

Case 6:20-cv-00492-ADA Document 70 Filed 04/23/21 Page 12 of 12