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. 

HUAWEI TECHNOLOGIES USA INC., 

et al., 

Defendants. 

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§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

CIVIL ACTION No. 6:20-CV-537-ADA 

CIVIL ACTION No. 6:20-CV-539-ADA 

 

DEFENDANTS’ SUR-REPLY CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 1 of 11
TABLE OF CONTENTS

Page

-iI. U.S. PATENT NO. 7,860,512 (“THE ’512 PATENT”) (CASE NO. 6:20-CV00537.................................................................................................................................. 1 

A. “capacity” (claims 1-18, 21-24, 27) ....................................................................... 1 

II. U.S. PATENT NO. 8,200,224 (“THE ’224 PATENT”) (CASE NO. 6:20-CV00539.................................................................................................................................. 3 

A. “selecting a first candidate base station ...” (claim 1) ........................................... 3 

B. “executable program means ...” (claim 15) ........................................................... 5 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 2 of 11
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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Eliyahou Harari et al. v. Roger Le, et al., 

656 F.3d 1331 (Fed. Cir. 2011)..................................................................................................4 

Function Media, LLC v. Google, Inc., 

708 F.3d. 1310 (Fed. Cir. 2013).................................................................................................5 

Omega Engineering, Inc. v. Raytek Corp., 

334 F.3d 1314 (Fed. Cir. 2003)..................................................................................................4 

WMS Gaming Inc. v. Int’l Game Tech., 

184 F.3d 1339 (Fed. Cir. 1999)..................................................................................................5 

 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 3 of 11
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TABLE OF PROPOSED CONSTRUCTIONS

I. U.S. Patent No. 7,860,512 (“the ’512 Patent”) (Case No. 6:20-cv-00537) 

A. “capacity” (claims 1-18, 21-24, 27) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“load” Plain and ordinary meaning 

II. U.S. Patent No. 8,200,224 (“the ’224 Patent”) (Case No. 6:20-cv-00539) 

A. “selecting a first candidate base station using said evaluation of said signal 

quality from said first measurement report” (claim 1) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“selecting a single candidate base station 

using said evaluation of said signal quality 

from said first measurement report” 

Plain and ordinary meaning 

B. “executable program means for causing a base station to perform the method 

when the program is run on the base station” (claim 15) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

Subject to 35 U.S.C. § 112, ¶ 6 

Function: causing a base station to perform 

the method of claim 1 when the program is 

run on the base station 

Structure: The flow chart of Figure 1, and its 

accompanying written description, and 

equivalents thereof 

Plain and ordinary meaning; and does not 

invoke 35 U.S.C. § 112, ¶ 6. If the Court 

finds the term invokes § 112, ¶ 6, however, 

then: 

Function: causing a base station to perform 

the method of claim 1. 

Structure: executable program code 

configured when executed to cause the base 

station to perform the method of claim 1; the 

example flowchart shown in Fig. 1 and its 

accompanying written description; example 

signaling described with reference to Figs. 2-

4; the example selecting process described 

with reference to Fig. 5; the base station 

described with reference to Fig. 6; and 

equivalents of any of the foregoing 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 4 of 11
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Defendants Huawei Technologies USA Inc., et al., (collectively, “Huawei”) respectfully 

submit this Sur-Reply Claim Construction Brief to Plaintiff’s (“WSOU’s”) Reply Claim 

Construction Brief (“Reply”) (See, e.g., -00537, Dkt. 46). 

I. U.S. Patent No. 7,860,512 (“the ’512 Patent”) (Case No. 6:20-cv-00537) 

A. “capacity” (claims 1-18, 21-24, 27) 

 Huawei’s proposal should be adopted because the patent applicants acted as their own 

lexicographers by repeatedly equating “capacity” in the phrases “radio capacity” and “transport 

capacity” to the term “load” throughout the’512 Patent. WSOU’s attempted rebuttals based on the 

claim language and specification both fail for the reasons set forth below. Specifically, regarding 

claim differentiation as between claims 1 and 3, WSOU ignores Huawei’s clarification in its 

Responsive Brief by arguing that claim differentiation must be invoked as to the “radio capacity 

term.” Reply at 2. However, such a term does not exist. Instead, claim 1 requires “radio capacity 

information” (a more high-level collective term), not simply “radio capacity.” Claim 3 then 

further provides four examples of “radio capacity information,” such as “transport load.” 

Accordingly, the term “transport load” (and the other three examples) in claim 3 are not equal to 

“radio capacity information,” or “radio load information” (after applying Huawei’s proposal1

) 

in claim 1. As such, the doctrine of claim differentiation does not apply between the terms “load” 

and “capacity.” Similarly, the fact that the term “capacity” is recited nine times in claim 1 (see

Reply at 1, 2) fails to support WSOU’s theory, as “capacity” is also recited by claim 3.2

 

 

1

 Huawei did not “miss[] the point” by applying the proposed construction as alleged by 

WSOU. Reply at 2. Huawei was simply demonstrating the inapplicability of the doctrine of claim 

differentiation either with or without applying the proposed construction. 

2

 Notably, WSOU failed to substantively respond to Huawei’s clarification in its Responsive 

Brief on claim differentiation within claim 3 in view of the ’512 Patent at 10:6-13. See Resp. at 

5-6. Huawei previously explained that “maximum radio capacity of the radio cell” and “available 

radio capacity of the radio cell” serve as a denominator to calculate the “current cell load” status 

(expressed as a percentage). Therefore, “capacity” in those phrases must mean “load.” See id. 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 5 of 11
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 WSOU further argues that Huawei should not rely on the “crux of the invention” to 

construe the claim. Reply at 2. However, by referencing the “crux of the invention,” Huawei 

merely highlights the applicants’ stated purpose of the ’512 Patent among numerous disclosures 

where the applicants acting as their own lexicographers. See Resp. at 2-3. Notably, WSOU fails 

to cite any additional disclosures in the ’512 Patent suggesting that “capacity” should be given any 

other meaning – as such does not exist in the ’512 Patent. Rather, WSOU attempts to rebut 

Huawei’s arguments by taking a quote out of context or making an inference from the wording as 

discussed below. See Reply at 1. But like the situations in numerous cases cited by Huawei (which 

WSOU failed to distinguish in its Reply), different words may have the same meaning in the 

context of the entire patent – just like “capacity” and “load” in the ’512 Patent. See Resp. at 1-2.3

 

Further, WSOU makes an unjustifiable inference from the word “can” in the phrase “the 

transport capacity can be indicated as the transport load,” claiming that the word “can” magically 

differentiates “capacity” from “load.” See Reply at 1. However, the entire paragraph of the 

specification relied on by WSOU (including the sentence above) actually discusses a traffic limit 

that can be determined by the transport capacity/load information. See ’512 Patent, 8:55-67. 

WSOU fails to answer the most important question – namely, what can “capacity” mean other than 

“load”? As the answer is “nothing,” the Court should adopt Huawei’s proposed construction. 

 

 

3

 For example, the paragraph (including 10:3-4 quoted by WSOU) states, “dynamically 

adjusting the radio capacity information . . . when a handover or access request arrives, based on 

the transport capacity limit reflecting the transport capacity and load situations in the transport 

network.” ’512 Patent, 9:65-10:4 (emphasis added). This paragraph echoes the “crux” of the ’512 

Patent as “mak[ing] it possible for the radio system to take the transport load situation into account 

when managing the radio resources of the radio system, e.g., when performing handovers.” Id.,

4:47-49 (emphasis added). 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 6 of 11
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II. U.S. Patent No. 8,200,224 (“the ’224 Patent”) (Case No. 6:20-cv-00539) 

A. “selecting a first candidate base station ...” (claim 1) 

In its Reply Brief, WSOU argues that Huawei has failed to show that the claim language 

and specification support the notion that “selecting a first candidate base station” means “selecting 

a single candidate base station. See Reply at 3. This is false. As Huawei explained in its 

Responsive Brief, the claim language, the specification, and statements made during prosecution 

support Huawei’s construction as the phrase “a first candidate base station” is consistently used in 

the singular form, rather than the plural. 

 WSOU’s contention that Huawei is attempting to interpret this phrase differently in 

different portions of claim 1 is wrong. See Reply at 3. The issue WSOU raises regarding the “first 

measurement report” (see id.) is inapposite to the disputed issue here because in that claim 

limitation, “first” is being used as an indicator of order as opposed to an indicator of quantity. See 

’224 Patent, 9:6-36 (“receiving a first measurement report” and a “second measurement report” 

during the second handover preparation) (emphasis added). WSOU’s argument may have been 

relevant if the ’224 Patent claimed both a “first” and “second” candidate base station – as opposed 

to “a first candidate base station” a “set of candidate base stations” and a “plurality of base stations” 

- but it does not, and WSOU’s argument thus misses the mark. 

 WSOU next attempts to import confusion into the dispute by pointing to the claim language 

regarding “at least one candidate base station.” Reply at 3. WSOU’s argument is misleading, 

however, because that language does not mean that the “first candidate base station” can be more 

than one base station, only that the first measurement report must contain an evaluation of signal 

quality from at least one candidate base station. See ’224 Patent, 9:7-11. The phrase “at least one” 

modifies the term “candidate base station,” communicating to a POSITA that it is possible for the 

measurement report to contain an evaluation of signal quality from more than one station. 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 7 of 11
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However, when it comes to the disputed phrase “first candidate base station,” no such modification 

language is present. See generally id., 9:1-38. Instead, the claim language is clear that the article 

“a,” with reference to “a first candidate base station,” means one and only one.4 

Finally, WSOU attempts to improperly raise the burden relating to prosecution history 

disclaimer using words such as “exacting” in an attempt to gloss over the unambiguous statements 

made by the applicants during prosecution. See Reply at 4. There is no case law establishing an 

“exacting” burden relating to prosecution history disclaimer. Indeed, when it comes to the 

relevance of statements made during prosecution, Huawei must only show that the statements are 

unambiguous and that the intent was to disavow claim scope. See Omega Engineering, Inc. v. 

Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003). 

Here, that is precisely what the applicants did when distinguishing Kim and clearly stating 

that “the subject matter of claim 1 attempts an initial handover preparation to a single selected 

target base station when a determination is made that a handover is needed, assuming it will be 

successful, and sends plural handover preparation messages to plural candidate base stations if the 

initial handover preparation attempt fails.” Resp., Ex 2, at 8 (emphasis added). There is no 

ambiguity in the applicants’ statement, and WSOU points to none. Instead, WSOU argues that the 

statement should be ignored because it was raised with reference to a claim term other than the 

term in dispute here. See Reply at 4. However, the cases WSOU relies upon are irrelevant to the 

present situation because the statements made by the applicants are, in fact, directly relevant to the 

understanding of claim 1 and the claim term at issue – namely, whether the “first candidate base 

station” is a single station, or more than one station. See Resp., Ex. 2, at 6-9. 

 

4

 See Eliyahou Harari et al. v. Roger Le, et al., 656 F.3d 1331, 1341 (Fed. Cir. 2011) (“When 

the claim language and specification indicate that ‘a’ means one and only one, it is appropriate to 

construe it as such even in the context of an open-ended ‘comprising’ claim.”). 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 8 of 11
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B. “executable program means ...” (claim 15) 

In its Reply Brief, WSOU fails to rebut or even address Huawei’s arguments that this term 

should be construed pursuant to § 112, ¶ 6.5

 See Reply at 5. Rather, WSOU argues that the 

“executable program” is sufficient structure because the method steps recited in claim 1 is more 

detailed than the flow chart of Figure 1. See Reply at 5. The fact that claim 15 contains more 

words than Figure 1 is irrelevant to the analysis. Claim 15 covers an unknown algorithm contained 

within the “executable program” that is capable of performing the method of claim 1. Thus, the 

Court must look to the specification to determine what algorithm is clearly linked to and 

accomplishes the claimed function.6 Yet the only algorithm disclosed in the specification capable 

of causing a base station to perform the claimed handover method is the algorithm of Figure 1. 

See ’224 Patent, 4:9-61 (describing FIG. 1 and the flowchart 100 of the handover method). 

WSOU’s newly-identified structure of “an executable program means causing a base 

station to perform the method of flowchart 100” is confusing and does not identify any 

corresponding algorithmic structure, but rather identifies (yet again) a generic “executable 

program.” The claim language itself indicates that this particular means-plus-function term is 

implemented by computer software and, as such, the corresponding structure must include an 

algorithm for performing the function. See WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 

1348 (Fed. Cir. 1999). That algorithm is described pictorially with respect to Figure 1. Only 

Huawei’s proposed construction includes the proper corresponding algorithm and, as such, it 

should be adopted by the Court. 

 

5

 Specifically, WSOU fails to rebut Huawei’s showing that the inclusion of the term “means” 

in this term indicates that it is subject to interpretation under 112, ¶ 6, and that the generic language 

of “executable program” does not connote sufficient structure. See Resp. at 11-13. 6

 See Function Media, LLC v. Google, Inc., 708 F.3d. 1310, 1318 (Fed. Cir. 2013) (holding 

that the specification must disclose an algorithm for performing the function in enough detail to 

explain how the function is performed). 

Case 6:20-cv-00537-ADA Document 49 Filed 04/02/21 Page 9 of 11
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Dated: April 2, 2021 Respectfully submitted, 

/s/ Jason W. Cook

Jason W. Cook 

Texas Bar No. 24028537 

Shaun W. Hassett 

Texas Bar No. 24074372 

McGuireWoods LLP 

2000 McKinney Avenue, Suite 1400 

Dallas, TX 75201 

Telephone: (214) 932-6400 

jcook@mcguirewoods.com 

shassett@mcguirewoods.com 

Tyler T. VanHoutan 

Texas Bar No. 24033290 

McGuireWoods LLP 

600 Travis St., Suite 7500 

Houston, TX 77002 

Telephone: (713) 571-9191 

tvanhoutan@mcguirewoods.com 

J. Mark Mann 

Texas Bar No. 12926150 

G. Blake Thompson 

Texas Bar No. 24042033 

MANN | TINDEL | THOMPSON 

300 West Main Street 

Henderson, Texas 75652 

Telephone: (903) 657-8540 

mark@themannfirm.com 

blake@themannfirm.com 

Counsel for Defendants Huawei Technologies 

Co., Ltd., Huawei Technologies USA, Inc., 

Huawei Device Co. Ltd. (f/k/a Huawei Device 

(Dongguan) Co.), Huawei Device (Shenzhen) Co., 

Ltd. (f/k/a Huawei Device Co. Ltd.) and Huawei 

Device USA

 

 

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CERTIFICATE OF SERVICE 

I hereby certify 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. 

 /s/ Jason W. Cook . 

 Jason W. Cook

 

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