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. 

MICROSOFT CORPORATION,

Defendant.

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION 6:20-cv-00460-ADA

CIVIL ACTION 6:20-cv-00462-ADA

CIVIL ACTION 6:20-cv-00464-ADA

PLAINTIFFS’ OPENING CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 1 of 14
i

TABLE OF CONTENTS

I. Legal Standards....................................................................................................................1

A. Claim Construction Generally .................................................................................1

B. Indefiniteness...........................................................................................................2

II. U.S. Patent No. 7,106,727 (Case No. 6:20-cv-00462) Disputed Claim Terms...................2

1. determining a measure of the plurality of calls............................................2

2. set of resources.............................................................................................4

III. U.S. Patent No. 7,706,519 (Case No. 6:20-cv-00464) Disputed Claim Terms...................5

3. automatically/automatic...............................................................................5

IV. U.S. Patent No. 8,625,758 (Case No. 6:20-cv-00460) Disputed Claim Terms...................5

4. accessing, dynamically, a rule for charging a sponsor of said 

communication services...............................................................................5

5. a plurality of parameter values including at least one respective 

value of at least one respective parameter other than an identity of 

an originator of the request for communication services, an 

intended recipient of a communication of the requested 

communication services and an identity of the sponsor ..............................6

6. dynamically determining a rule for charging a sponsor of said 

communication service ................................................................................8

7. a plurality of parameter values including at least one respective 

value of at least one respective parameter other than an identity of 

an originator of a request for the communication service, an 

intended recipient of a communication of the requested 

communication service and an identity of the sponsor................................8

8. a first cost for the usage of said communication service is charged 

at least partially to said sponsor, by determining a second cost, the 

second cost depending on said rule and said first cost.................................9

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 2 of 14
ii

TABLE OF AUTHORITIES

Cases

Azure Networks, LLC v. CSR PLC,

771 F.3d 1336 (Fed. Cir. 2014)................................................................................................... 1

CloudofChange, LLC v. NCR Corp.,

No. 6-19-CV-00513-ADA, 2020 WL 4004810 (W.D. Tex. July 15, 2020)........................... 1, 2

Comark Commc’ns, Inc. v. Harris Corp.,

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

Dayco Prods. v. Total Containment, Inc.,

258 F.3d 1327 (Fed. Cir. 2001)........................................................................................... 3, 4, 7

Liebel–Flarsheim Co. v. Medrad, Inc.,

358 F.3d 898 (Fed.Cir.2004)....................................................................................................... 4

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

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

Nevro Corp. v. Bos. Sci. Corp.,

955 F.3d 41 (Fed. Cir. 2020)................................................................................................. 5, 10

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)................................................................................................... 1

Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,

844 F.3d 1370 (Fed. Cir. 2017)................................................................................................... 2

Toshiba Corp. v. Imation Corp.,

681 F.3d 1369 (Fed. Cir. 2012)........................................................................................... 2, 4, 7

Statutes

35 U.S.C. § 112............................................................................................................................... 2

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 3 of 14
1

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

respectfully submits this claim construction brief in support of its proposed constructions.

I. Legal Standards

A. Claim Construction Generally

The general rule is that claim terms are generally given their plain-and-ordinary meaning. 

Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v.

CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated on other grounds by 135 S. Ct. 1846, 

1846 (2015) (“There is a heavy presumption that claim terms carry their accustomed meaning in 

the relevant community at the relevant time.”). The plain and ordinary meaning of a term is the 

“meaning that the term would have to a person of ordinary skill in the art in question at the time 

of the invention.” Philips,415 F.3d at 1313. “‘Although the specification may aid the court in 

interpreting the meaning of disputed claim language, particular embodiments and examples 

appearing in the specification will not generally be read into the claims.’” Comark Commc’ns, Inc. 

v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced MicroDevices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)). Although extrinsic evidence can also be 

useful, it is ‘“less significant than the intrinsic record in determining the legally operative meaning 

of claim language.’” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 

388 F.3d 858, 862 (Fed. Cir. 2004)). 

This Court recently explained that “[t]he ‘only two exceptions to [the] general rule’ that 

claim terms are construed according to their plain and ordinary meaning are when the patentee 

(1) acts as his/her own lexicographer or (2) disavows the full scope of the claim term either in the 

specification or during prosecution.” CloudofChange, LLC v. NCR Corp., No. 6-19-CV-00513-

ADA, 2020 WL 4004810, at *2 (W.D. Tex. July 15, 2020) (quoting Thorner v. Sony Computer

Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as his/her own lexicographer, the 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 4 of 14
2

patentee must ‘clearly set forth a definition of the disputed claim term,’ and ‘clearly express an 

intent to define the term.’” Id. (quoting Thorner, 669 F.3d at 1365). And “[t]o disavow the full 

scope of a claim term, the patentee’s statements in the specification or prosecution history must 

represent ‘a clear disavowal of claim scope.’” Id. (quoting Thorner, 669 F.3d at at 1366). 

“Accordingly, when ‘an applicant’s statements are amenable to multiple reasonable 

interpretations, they cannot be deemed clear and unmistakable.’” Id. (quoting 3MInnovative 

Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013)).

B. Indefiniteness

The Patent Act requires claims to particularly point out and distinctly claim the subject

matter regarded as the inventions. 35 U.S.C. § 112, ¶ 2. To satisfy this requirement, the claim must 

be read in light of the intrinsic evidence to determine whether it 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). To establish that a claim is indefinite, 

a patent challenger must prove indefiniteness by clear and convincing evidence. Sonix Tech. Co. 

v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).

II. U.S. Patent No. 7,106,727 (Case No. 6:20-cv-00462) Disputed Claim Terms

1. determining a measure of the plurality of calls

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning measuring the number and type of calls on the 

network

This term should be given its plain and ordinary meaning. Defendant’s proposed 

construction should be rejected at least for improperly importing limitations from the specification. 

Toshiba Corp. v. Imation Corp., 681 F.3d 1369 (Fed. Cir. 2012) (“Absent disclaimer or 

lexicography, the plain meaning of the claim controls.”); Dayco Prods. v. Total Containment, Inc., 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 5 of 14
3

258 F.3d 1327 (Fed. Cir. 2001) (“adding limitations to claims not required by the claim terms 

themselves, or unambiguously required by the specification or prosecution history, is 

impermissible.”). Defendant’s proposed construction improperly seeks to limit this term to 

“measuring the number and type of calls on the network”, however, the specification makes clear 

that this term is not so limited. For example, the specification enumerates numerous exemplary 

ways a measure may be determined:

“When traffic is to be measured at step 303, the process continues 

with step 305, where a measure of calls received at step 301 is 

determined. The measure of calls includes a measure of circuitswitched traffic (in bits per second), a measure of packet-switched

traffic (in bits per second), a distribution of traffic between circuitswitched and packet-switched (e.g., by %), a measure of circuitswitched calls (e.g., a count of current circuit switched calls), a 

measure of packet-switched calls (e.g., a count of current packetswitched calls), a distribution of calls between circuit-switched and 

packet-switched (e.g., by % of total bandwidth), and any of 

measure of traffic or calls as known in the art. For example, 

traffic may be measured as 12 Mbps circuit-switched and 25 Mbps 

packet-switched or a percentage allocation between circuit and 

packet may be utilized, such as 60% circuit and 40% packet. 

Alternatively, a count of calls at the access network 105 by type 

may be utilized, such as 123 circuit calls and 68 packet calls. A

further measure might be a division of the total number of

resources by type. Such as 96 circuit resources and 48 resources.” 

’727 patent, 4:31-52 (emphasis added). 

As seen in the example above, the specification expressly contemplates numerous ways a 

measure of calls may be determined, including measures of circuit-switched traffic, packetswitched traffic, distribution of traffic, count of circuit-switched calls, count of packet-switched 

calls, “and any of measure of traffic or calls as known in the art”. Defendant’s proposed 

construction improperly seeks to limit the term to just one of the recited examples of a measure, 

whereas the specification not only enumerates many other measures, but the specification also

makes clear the claims are not limited to just those specific examples. Defendant’s proposed 

construction should be rejected. 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 6 of 14
4

2. set of resources

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning a part of a pool of physical network resources, 

each capable of handling circuit-switched and 

packet-switched formats

This term should be given its plain and ordinary meaning. Defendant’s proposed 

construction should be rejected at least for improperly importing limitations from the specification. 

Toshiba, 681 F.3d at 1369 (“Absent disclaimer or lexicography, the plain meaning of the claim 

controls.”); Dayco, 258 F.3d at 1327 (“adding limitations to claims not required by the claim terms 

themselves, or unambiguously required by the specification or prosecution history, is 

impermissible.”). Defendant’s proposed construction improperly seeks to limit this term to require 

“physical network resources” and to require that the set of resources “each capable of handling 

circuit-switched and packet-switched networks”. It appears that Defendant’s proposed 

construction is seeking to import limitations from an embodiment illustrated by Figure 1 of the 

’727 patent, however, importing limitations from an embodiment is improper, even if Defendant 

were to contend that it was the only embodiment. Liebel–Flarsheim Co. v. Medrad, Inc., 358 F.3d 

898, 906 (Fed.Cir.2004). Furthermore, the specification makes clear that the claims are not limited 

in the ways that Defendant proposes. First, the specification makes clear that the claims are not 

limited to “physical network resources” where “each [are] capable of handling circuit-switched 

and packet-switched formats” as Defendant proposes. 

Instead, the specification states that “The above embodiments describe an allocation of

resources between circuit-switched and packet-switched. The present invention may also be 

applied to additional types of resources, i.e., to allocate and reallocate resources between two or 

more types of resources.” ’727 patent, 7:62-67. Accordingly, Defendant’s proposed construction 

should be rejected. 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 7 of 14
5

III. U.S. Patent No. 7,706,519 (Case No. 6:20-cv-00464) Disputed Claim Terms

3. automatically/automatic

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite

This term should be given its plain and ordinary meaning, which is understood by jurors, 

lay-persons, and persons of ordinary skill in the art alike. The term “automatic” is widely used and 

understood. Defendant’s position that the term is indefinite should be rejected. There is nothing 

confusing or uncertain about the scope of the term. Nevro Corp. v. Bos. Sci. Corp., 955 F.3d 41 

(Fed. Cir. 2020). 

IV. U.S. Patent No. 8,625,758 (Case No. 6:20-cv-00460) Disputed Claim Terms

4. accessing, dynamically, a rule for charging a sponsor of said 

communication services

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning selecting in real-time which rule from a set of 

rules is applicable for charging a sponsor of 

said communication service

This term should be given its plain and ordinary meaning. Defendant’s proposed 

construction attempts to re-write the claim language and insert limitations not recited much less 

required by the specification. Specifically, (i) there is nothing in the specification that requires the 

accessing to occur in “real-time”, and (ii) there is nothing in the specification that requires “a set 

of rules” as Defendant proposes. First, where Defendant attempts to replace the word 

“dynamically” with “real-time” should be rejected, not only does the word “real-time” not appear 

anywhere in the specification, the specification describes “dynamically” determining a rule for 

charging based on one or more other rules or factors. See e.g. ’758 patent, 5:39-41, 6:14-20. 

Additionally, Defendant’s replacement of “dynamically” with “real-time” is confusing and 

unhelpful. Second, where Defendant attempts to replace “accessing ... a rule...” with “selecting 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 8 of 14
6

... which rule from a set of rules...” should also be rejected. Nowhere in the specification or claim 

language is there a requirement that the rule is accessed or selected from a set of rules. And in fact, 

as the specification teaches, the rule may be determined, rather than “selected” from a set of rules. 

See e.g. ’758 patent, 4:38-53, 5:39-41, 6:14-20. For example, the rule may be determined based on 

a percentage of a first cost, or the rule may be determined by consulting a different rule, or the rule 

may be determined by extracting an identifier and searching a different rule for a matching

identifier. Id. In other words, there is nothing in the specification or claim language that requires 

“a set of rules” from which a rule is “selected” as Defendant proposes. 

In summary, Defendant’s proposed construction improperly rewrites the words of the claim 

language and seeks to limit the scope of the claim language where there is no evidence of 

disclaimer or lexicography. Defendant’s proposed construction should be rejected.

5. a plurality of parameter values including at least one respective value 

of at least one respective parameter other than an identity of an 

originator of the request for communication services, an intended 

recipient of a communication of the requested communication services 

and an identity of the sponsor

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning a plurality of parameter values, one of which 

must be something other than the location/ 

country code of the phone number of the 

recipient of an originator of the request for 

communication services, the location/ country 

code of the phone number of the intended 

recipient of a communication of the requested 

communication services, or the identity of the 

sponsor

This term should be given its plain and ordinary meaning, as there is nothing in Defendant’s 

proposed construction that indicates any confusion as to the plain meaning of the term itself. In 

fact, for the most part Defendant merely rewords the claim language (which is confusing and at 

best unhelpful), and then strangely replaces the word “identity” in only one of the two places the 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 9 of 14
7

word appears in the claim language. Further, by selectively replacing the word “identity” it 

becomes clear that Defendant does so only to improperly narrow the scope of the claim term to 

restrict the “identity” of an originator of the request and an intended recipient of a communication 

to “the location / country code of the phone number of” each respective entity. However, not only 

is it improper to import limitations from the specification, there is no such recitation of a “location 

/ country code” in the specification. Toshiba, 681 F.3d at 1358, 1369 (“Absent disclaimer or 

lexicography, the plain meaning of the claim controls.”); Dayco, 258 F.3d at 1317, 1327 (“adding 

limitations to claims not required by the claim terms themselves, or unambiguously required by 

the specification or prosecution history, is impermissible.”). Indeed, the word “code” does not 

appear anywhere in the specification. Perhaps Defendant is referring to examples in the 

specification of identifiers, however such exemplary identifiers are phone numbers (as opposed to 

“location/country codes” of the phone numbers). See e.g. ’758 patent, 3:16-22, 7:49-51. 

Additionally, the specification also provides for determining an identifier from a “charging event”. 

Id., 7:1-2. Regardless, nothing in any of the examples from the specification rises to the level of 

disclaimer or lexicography. Finally, Defendant’s proposed construction should further be rejected 

because it seeks to replace the phrase “other than an identity of an originator of the request for 

communication services” in the claim language with “something other than the location/country 

code of the phone number of the recipient of an originator of the request for communication 

services”. It is incomprehensible what Defendant is referring to by “the recipient of an originator”. 

In summary, Defendant’s proposed construction confusingly and unnecessarily rewrites 

the words of the claim language and improperly seeks to limit the scope of the word “identity” 

where there is no evidence of disclaimer or lexicography, and in only one of two instances in the 

claim language. Defendant’s proposed construction should be rejected. 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 10 of 14
8

6. dynamically determining a rule for charging a sponsor of said 

communication service

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning selecting in real-time which rule from a set of 

rules is applicable for charging a sponsor of 

said communication service

This term should be given its plain and ordinary meaning for the same reasons as discussed 

in Section IV.1, above. This term only slight differs in that it recites “dynamically determining” 

instead of “accessing, dynamically”, and as discussed in Section IV.1, above, the specification 

provides examples of “dynamically determining” the rule, which does not mention, much less 

require “selecting in real-time” nor does it require “selecting... which rule from a set of rules...”. 

Defendant’s proposed construction improperly rewrites the words of the claim language and seeks 

to limit the scope of the claim language where there is no evidence of disclaimer or lexicography. 

Defendant’s proposed construction should be rejected.

7. a plurality of parameter values including at least one respective value 

of at least one respective parameter other than an identity of an 

originator of a request for the communication service, an intended 

recipient of a communication of the requested communication service 

and an identity of the sponsor

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning a plurality of parameter values, one of which 

must be something other than the location/ 

country code of the phone number of the 

recipient of an originator of the request for 

communication services, the location/ country 

code of the phone number of the intended 

recipient of a communication of the requested 

communication services, or the identity of the 

sponsor

WSOU includes this term, which is nearly identical to the term discussed in Section IV.2, 

above (the only difference being the phrase “for the communication service” instead of “for 

communications services”), because it is identified and presented as a separate term by 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 11 of 14
9

Defendant’s Amended Proposed Claim Constructions. This term should be given its plain and 

ordinary meaning for the same reasons as discussed in Section IV.2, above. Defendant’s proposed 

construction should be rejected. 

8. a first cost for the usage of said communication service is charged at 

least partially to said sponsor, by determining a second cost, the 

second cost depending on said rule and said first cost

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite

This term should be given its plain and ordinary meaning. To the extent Defendant will 

argue Defendant cannot understand or parse the term, breaking up the term into three pieces may 

assist Defendant: (i) a first cost for said communication service is charged at least partially to the 

sponsor, (ii) by determining a second cost, (iii) the second cost depending on said rule and said 

first cost. To put the above claim language differently, a second charge is charged to the sponsor, 

where the second charge is determined by the first cost and a said rule, which results in the second 

cost (which is what is charged to the sponsor) being at least a partial amount of the first cost. 

Defendant perhaps will argue that the above logic is circular, but Defendant would be 

wrong because Defendant likely overlooks that only a part of the first cost is charged to said 

sponsor. In other words, it is the second cost that is charged to the sponsor, not the first cost, and 

there is nothing controversial about the second cost being determined based on a rule and the first 

cost. The specification provides an example: 

“In step 306 said sponsor's cost C2 is determined, for example by 

applying said rule R to said total cost C1. For example said rule R 

is defined as pair of data, containing said first values referencing 

said sponsor, and said second value r, e.g. r=0.1, defining e.g. said 

percentage of said total cost C1 that is to be charged to said 

sponsor. In this case said second cost C2 is calculated as follows: 

C2=C1 *r.” ’758 patent, 6:35-41.

As shown in the above example, the sponsor’s cost (C2, or the second cost) is determined 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 12 of 14
10

“by applying said rule to said total cost C1 [the first cost]”. Or, put differently C2 (the second cost) 

equals C1 (the first cost) multiplied by “r” (the percentage value from said rule), which results in 

the sponsor’s cost (the second cost C2) being at least a portion of (or partially of) C1, the first cost. 

Defendant’s position that the term is indefinite should be rejected. As shown above, there 

is nothing confusing about the scope or requirements of the term. Nevro, 955 F.3d at 41 (The test 

for indefiniteness is whether the claims, viewed in light of the specification and prosecution 

history, “inform those skilled in the art about the scope of the invention with reasonable 

certainty.”). 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 13 of 14
11

Dated: January 8, 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 this the 8th

day of January, 2021.

/s/ James L. Etheridge

James L. Etheridge 

Case 6:20-cv-00464-ADA Document 47 Filed 01/08/21 Page 14 of 14