IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC d/b/a BRAZOS 

LICENSING AND DEVELOPMENT,

Plaintiff,

v.

DELL TECHNOLOGIES INC., DELL INC., 

EMC CORPORATION, AND VMWARE, 

INC.,

Defendants.

Case No. 6:20-cv-00480-ADA

Case No. 6:20-cv-00481-ADA

Case No. 6:20-cv-00485-ADA

Case No. 6:20-cv-00486-ADA

JURY TRIAL DEMANDED

DECLARATION OF BRIAN A. ROSENTHAL IN SUPPORT OF

DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF

REGARDING U.S. PATENT NOS. 7,092,360; 7,539,133; 7,636,309; AND 9,164,800

Case 6:20-cv-00480-ADA Document 82-1 Filed 03/17/21 Page 1 of 4
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I, Brian A. Rosenthal, declare as follows:

1. I am an attorney permitted to practice law before this Court pro hac vice and am 

licensed to practice law in New York and the District of Columbia. I am a partner with the law 

firm of Gibson, Dunn & Crutcher LLP and counsel of record for Defendants Dell Technologies 

Inc., Dell Inc., EMC Corporation, and VMware, Inc. (collectively, “Defendants”) in the abovecaptioned action. I have personal knowledge and/or am directly informed of the matters stated 

below and, if called, would testify to them under oath.

2. On behalf of Defendants, I attended a January 28, 2021 meet-and-confer call with 

counsel for WSOU Investments, LLC to narrow claim construction disputes in the abovecaptioned cases. My co-counsel, Benjamin Hershkowitz, Y. Ernest Hsin, Jaysen Chung, and 

Kyanna Sabanoglu, also attended the call on behalf of Defendants. Counsel for WSOU who 

attended the call included Brett Mangrum and Ryan Loveless. I have conferred with each of the 

attendees from Gibson Dunn listed above to confirm that my recollection of that call was accurate. 

Each has confirmed that my recollection is accurate and that WSOU’s statements in its brief 

regarding this call are inaccurate.

3. Among other disputed claim terms, I addressed the following terms in U.S. Patent 

No. 7,092,360 that use the phrase “means . . .” or “means for . . .”: “detection means for detecting 

a state of an element” (Claims 1 and 18); “comparing means for comparing the detected state with 

a predetermined state for said element and for outputting the result of the comparison” (Claims 1 

and 24); and “determining means for determining an expected value of said parameter” (Claim 

18). I stated that I understood WSOU’s position to be that these claims overcome the presumption 

that the terms must be construed under 35 U.S.C. § 112, ¶ 6. I asked Mr. Mangrum to explain 

WSOU’s position.

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4. Mr. Mangrum responded by using the “detection means” term as an example and

referring me to claim 1 of the ’360 patent. He directed me to the specification and asked me 

whether the corresponding structure for the “detection means” was located in “monitor 107” 

depicted in Figure 2. I replied that the modules (110, 112, 114 . . . to 130) (which actually perform 

the recited function) are located in the monitor 107, so that the answer was that the corresponding 

structure for the “detecting means” was indeed located in monitor 107. He then directed me back 

to claim 1 and asked me whether I agreed that “monitor” is recited in the claim. Mr. Mangrum 

advised that he was asking this question solely for the purposes of the meet-and-confer discussion, 

and that he would not “hold” me to any statements I made during the discussion about this topic.

5. I responded to Mr. Mangrum by acknowledging that the word “monitor” is recited 

in the claim. Mr. Mangrum then declared that I had “admitted” that the claim recites corresponding 

structure for the claimed “detection means.” He then attempted to move the conversation to a 

different topic. I interrupted him and told him immediately that he had mischaracterized my 

response. I stated, unequivocally, that Defendants do not agree that the “monitor” is itself 

corresponding structure for the “detection means” and therefore Defendants disagree that the 

claim’s recitation of “monitor” overcomes the Section 112, ¶ 6 presumption. I further stated 

unequivocally that my acknowledgment that the word “monitor” is recited in the claim was not an

admission that “monitor” is the structure that performs the recited functions, or that its recitation

overcomes the presumption. I further told Mr. Mangrum that if he tried to characterize this 

discussion in the way that he attempted to—i.e., by suggesting that I had admitted that the claim 

itself recited corresponding structure—that such a characterization would be false. The 

conversation about this topic ended there and we did not discuss further any of the “means for” 

terms in the ’360 patent, since it was now apparent that Mr. Mangrum’s purpose in discussing 

Case 6:20-cv-00480-ADA Document 82-1 Filed 03/17/21 Page 3 of 4
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them was to try to bait me into a false admission rather than try to resolve disputes.

6. I was surprised to see in WSOU’s claim construction brief the statement that “Dell 

admitted through counsel (during a telephonic meet and confer) that the specification discloses a 

‘monitor’ as structure corresponding to the ‘detecting a state of an element of said scheduler.’” 

D.I. 80 at 7. WSOU repeatedly relies on this so-called “party admission” throughout its discussion 

of the ’360 patent means-plus-function terms. WSOU’s characterization of the parties’ meet-andconfer is false, and is exactly the characterization that I told Mr. Mangrum was false during our 

meet-and-confer. To the contrary, as discussed above, after Mr. Mangrum stated on the call that I 

had admitted that the claims themselves disclose corresponding structure for the disputed terms, I 

explicitly told Mr. Mangrum that he had mischaracterized my statements, and that I unequivocally 

did not agree that the claims themselves included corresponding structure for the claims. 

I declare under penalty of perjury that the foregoing is true and correct.

Dated: March 17, 2021

/s/ Brian A. Rosenthal___ 

Brian A. Rosenthal

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