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., AND EMC 

CORPORATION, ,

Defendants.

§

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION 6:20-cv-00473-ADA

CIVIL ACTION 6:20-cv-00478-ADA

PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 1 of 13
i

Table of Contents

Table of Contents........................................................................................................................... i

Table of Authorities...................................................................................................................... ii

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

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

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

II. U.S. Patent No. 7,126,921 (Case No. 6:20-cv-00478).......................................................2

A. “fast propagation” (claims 1, 9, & 17)..................................................................2

1. Dell’s “Much Faster” Construction is Flawed ........................................2

2. Dell Indefiniteness Position Is Internally Inconsistent ...........................3

B. “data plane means for forwarding packets between the nodes” (claim 

1) / “data plane means for forwarding packets to other nodes in the 

network” (claims 9 & 17) ......................................................................................4

III. U.S. Patent No. 9,137,144 (Case No. 6:20-cv-00473).......................................................5

A. “group of communication traffic” (claims 1, 4, 11, 12, and 14).........................5

B. “V is a group identifier corresponding to the group of communication 

traffic” (claims 1, 11, and 14)................................................................................6

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 2 of 13
ii

Table of Authorities

Cases

Acromed Corp. v. Sofamor Danek Group,

253 F.3d 1371 (Fed. Cir. 2001)................................................................................................... 5

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, 7

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

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

M Innovative Properties Co. v. Avery Dennison Corp.,

350 F.3d 1365 (Fed. Cir. 2003)................................................................................................... 9

Micro Chemical v. Great Plains Chemical,

194 F.3d 1250 (Fed. Cir. 1999)................................................................................................... 5

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

572 U.S. 898 (2014)................................................................................................................ 2, 3

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, 3

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

669 F.3d 1362 (Fed. Cir. 2012)........................................................................................... 1, 3, 6

Statutes

35 U.S.C. § 112........................................................................................................................... 2, 4

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 3 of 13
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), cert. denied, 546 U.S. 

1170 (2006); 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 Micro-Devices, 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 

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 

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 4 of 13
2

represent ‘a clear disavowal of claim scope.’” Id. (quoting Thorner, 669 F.3d 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. 7,126,921 (Case No. 6:20-cv-00478)

A. “fast propagation” (claims 1, 9, & 17)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite. 

In the alternative this means “much faster than 

using the computing means, e.g., by using OSPF 

routing protocol” 

1. Dell’s “Much Faster” Construction is Flawed

Dell proposes two alternate positions, both of which are flawed.

First, turning first to Dell’s alternate construction, Dell improperly attempts to substitute 

the plain and ordinary meaning of the words selected by the scrivener with its construction. Both 

the claims and specification refer to “fast propagation” without any limitation, and there is no 

indication of lexicography or disavowal in the intrinsic evidence. E.g., ’921 patent at 3:24-26 (“the 

means for fast propagation of node related information comprises means for fast propagation of 

link state information, e.g., means for fast propagation of link failure information”). While the 

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 5 of 13
3

specification discusses certain concepts in Dell’s construction, such as “OPSF (Open Shortest Path

First ....),” that description is not linked to the definition of “fast propagation.” E.g., id. at 2:1-8. 

These portions of the specification merely discuss advantages over prior art methods, such as 

OSPF; there is no requirement that the claimed invention be faster than the prior art. These 

statements fall short of either lexicography or disavowal, and the plain and ordinary meaning 

should stand. See Thorner, 669 F.3d at 1365.

Second, Dell’s construction will only lead to jury confusion on how “much faster” its 

construction requires. If anything, Dell’s construction of “much faster” is less clear than the claim 

term “fast.” Indeed, by using a form of the word “fast” in its own construction, Dell concedes by 

implication that the word “fast” itself has a plain and ordinary meaning to a POSITA. Again, had 

the scrivener intended to claim the concept of “much faster,” they would have opted to do so. Dell 

should not be allowed to rewrite the claims.

2. Dell Indefiniteness Position Is Internally Inconsistent

Dell has failed to articulate why it deems this term indefinite in its Invalidity Contentions

and merely identified the term “fast propagation” as indefinite but failed to articulate any theory 

or evidence to support its position. Given that Dell bears the burden to show indefiniteness by clear 

and convincing evidence, see Sonix, 844 F.3d at 1377, WSOU will respond to Dell’s indefiniteness 

arguments after Dell articulates its theory in its Response. Independent of whatever theory Dell 

may be contemplating, Dell all but concedes indefiniteness by offering the alternate construction

discussed above. By doing so, Dell effectively concedes that a POSITA would be informed “about 

the scope of the invention with reasonable certainty.” See Nautilus, 572 U.S. at 910-11. While 

WSOU disputes Dell’s construction as noted above, the fact that Dell is able to propose some 

construction is proof that the term is not indefinite. In a similar vein, Dell’s agreement to the 

construction of a different term conflicts with its indefiniteness assertion for this term. In 

particular, Dell has agreed to §112, ¶6 functions and corresponding structures for terms that 

include the phrase “fast propagation.” For instance, Dell has agreed that the term “means for fast 

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 6 of 13
4

propagation of link state information” is subject to 35 U.S.C. § 112, ¶6 and that the function is 

“fast propagation of link state information.” Based on that agreed function, Dell was able to 

identify and agree to corresponding structure. It is logically inconsistent for Dell to, on the one 

hand, acknowledge an understanding of “fast propagation” in the context of “means for fast 

propagation of link state information,” and, on the other hand, claim that the very same “fast 

propagation” term standing alone is indefinite. Taking Dell’s positions across all terms, it does not 

seem that even Dell is convinced of indefiniteness for this term.

B. “data plane means for forwarding packets between the nodes” (claim 1) / 

“data plane means for forwarding packets to other nodes in the network” 

(claims 9 & 17)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Subject to means-plus-function construction. 

Claim 1

Function: forwarding packets between the nodes 

Structure: 4:44-60 (link interface 216 and 

switching fabric 214); and equivalent structures

Claim 9 & 17

Function: forwarding packets to other nodes in 

the network

Structure: 4:44-60 (link interface 216 and 

switching fabric 214); and equivalent structures

This term is subject to 35 U.S.C. § 112, ¶ 6. 

Claim 1 

Function: forwarding packets between the nodes 

Structure: Data plane 202 (distinct from the 

computing means) including switching fabric 

214 and link interface 216; and equivalent 

structures 

Claim 9 & 17 

Function: forwarding packets to other nodes in 

the network 

Structure: Data plane 202 (distinct from the 

computing means) including switching fabric 

214 and link interface 216; and equivalent 

structures 

The parties agree that the respective “data plane means ....” terms in claims 1, 9, and 17 

are subject to means-plus-function treatment under 35 U.S.C. § 112, ¶ 6 and are not indefinite. 

The parties also agree that the recited function for this “means for” term includes “forwarding 

packets between the nodes” for claim 1 and “forwarding packets to other nodes in the network” for

claims 9 and 17.1 The only dispute is whether the corresponding structure should be just the link 

1 On further reflection, WSOU has slightly modified the functions in its proposed constructions 

to comport with Dell’s listed functions to better highlight that the dispute is limited to the 

corresponding structure. WSOU has also added “and equivalent structures” as the parties have 

agreed to add that language with respect to other means-plus-function agreed upon terms.

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 7 of 13
5

interface 216 and switching fabric 214 (as WSOU contends) or the entirety of the data plane 202 

(distinct from the computing means) including the switching fabric 214 and link interface 216. 

The specification supports WSOU’s position with respect to corresponding structure. In 

particular, the specification expressly states that the “data plane means for forwarding packets 

between the nodes include[es] a link interface and a switching fabric.” ’921 patent at 4:44-46. 

While other components of the data plane means 202 are illustrated and described in a preferred 

embodiment, the specification teaches that only the link interface and switching fabric are the 

corresponding structure. See id.; accord id. at 6:3-5 (“The data plane 204 includes the switching 

fabric 214 and at least two link interfaces 216 (only one of them shown in FIG. 4.”). The 

corresponding structure is only what is “necessary to perform the claimed function.” Micro 

Chemical v. Great Plains Chemical, 194 F.3d 1250, 1258 (Fed. Cir. 1999) (“The statute does not 

permit limitation of a means-plus-function claim by adopting a function different from that 

explicitly recited in the claim. Nor does the statute permit incorporation of structure from the 

written description beyond that necessary to perform the claimed function.”); accord Acromed 

Corp. v. Sofamor Danek Group, 253 F.3d 1371, 1382 (Fed. Cir. 2001) (“a court may not import 

into the claim structural limitations from the written description that are unnecessary to perform 

the claimed function.”). Here, the link interface 216 and switch fabric 214 is the only “necessary” 

structure as expressly stated by the specification. See ’921 patent at 4:44-46. 

III. U.S. Patent No. 9,137,144 (Case No. 6:20-cv-00473) 

A. “group of communication traffic” (claims 1, 4, 11, 12, and 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning “traffic in a VLAN or other identifiable 

communications group”

The phrase “group of communication traffic” requires no construction, particularly in view 

of the contexts in which it is recited in claims (1, 4, 11, 12, and 14). Dell errs in seeking to redraft 

the phrase “group of communication traffic” as “traffic in a VLAN or other identifiable

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 8 of 13
6

communications group.” Dell violates the proscription against adding limitations neither required 

by claim terms nor unambiguously required by either the specification or the prosecution history. 

See, e.g., Cont’l Circuits, 915 F.3d at 796–97; Dayco, 258 F.3d at 1327. 

Dell’s construction also conflicts with the specification. In particular, the specification 

describes “providing path selections for other VLANs or other communication groups.” ’114 

patent at 7:46-48. The specification does not include any lexicography or disclaimer that the 

groups must be “identifiable” as Dell proposes in its construction. And while VLANs are 

referenced as an example of a group, this and other passages in the specification make clear 

VLANs are only exemplary and the invention is not limited to VLANs. ’144 patent at 2:22 

(“VLANs or other groups of data traffic”); id. at 4:41 (“no traffic groupings (for example, 

VLANs”); id. at 7:20-21 (“VLANs are one way of grouping traffic”). Thus, while the term “group 

of communication traffic” would include VLANs, there is no reason to limit the claim scope with 

VLANs.

B. “V is a group identifier corresponding to the group of communication 

traffic” (claims 1, 11, and 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Plain and ordinary meaning; but the group 

identifier cannot be a hash value based on packet 

fields such as source address and destination 

address”

Dell’s construction suffers from multiple flaws. 

First, the plain and ordinary meaning should apply as neither of the Thorner exceptions—

lexicography or disavowal—applies. See Thorner, 669 F.3d at 1365. Dell attempts to cloak its 

proposed construction under a guise of plain and ordinary meaning but then goes on to deviate 

from that plain and ordinary meaning with a carve-out—“but the group identifier cannot be a hash 

value based on packet fields such as source address and destination address.” The claims merely recite

first “determining V mod N” (a term which the parties agree does not require construction) and then 

specifies that “V is a group identifier corresponding to the group of communication traffic.” The claim 

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 9 of 13
7

language thus only requires the V group identifier be “corresponding” to the group of communication 

traffic. The specification comports with the claims: 

Note that any convenient sequence number V may be used for the first VLAN 

(VLANO). The VLANs do not all have to be identified initially; they can be added to 

the table and assigned a sequential ID number at a later time. In some implementations 

a sequential VLAN ID is already in use and a separate number need not be assigned. 

For convenience existing VLAN numbers may be truncated so long as each VLAN is 

uniquely (and preferably sequentially) identified

’144 patent at 6:12-19. Accordingly, the intrinsic evidence demonstrates that the term is not limited as 

Dell proposes.

Second, Dell relies on flawed legal theory to argue that the prosecution history should limit 

the plain and ordinary meaning. Dell has twice argued that “the applicant distinguished the claimed 

V mod N calculation from hashing in order to overcome the prior art.” -473 Case, Dkt. 31 at 7;2 -

473 Case, Dkt. 36 at 2. But the test for disavowal is not what the applicant “distinguished.” Rather, 

“[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.’” CloudofChange, 2020 WL 

4004810, at *2 (quoting Thorner, 669 F.3d at 1366). 

Third, even if Dell had applied the proper legal standard for disavowal, Dell grossly 

misreads the prosecution history and reaches a wrong conclusion. In particular, Dell relies on the 

following prosecution history statement listed below. For context, WSOU has provided a broader 

passage; Dell only cites to the portion in yellow highlighting below: 

The Office Action cites Matthews in the present rejection. Matthews relates to 

"network traffic management." (Matthews; title). Specifically, the Office Action 

cites paragraphs [0025], [0031] and [0032] of Matthews. However, the cited 

portions of Matthews do not teach or suggest at least, "comparing a result of the 

determining to indices on a path selection table that associates a unique index with 

each of the plurality of communication paths, and selecting a path associated with 

an index equal to the result, wherein N is a number of paths in the plurality of 

communication paths and Vis a group identifier," as in claims 1 and 11.

2 Dell’s Docket Entry 31 lists each page in the body as “iv.” WSOU’s reference above refers to 

the ECF page number at the top of the header, e.g., “Page 7 of 21.”

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 10 of 13
8

In particular, while the cited portions of Matthews may mention a modulus

operation, the modulus operation is merely performed on a hash value to obtain a 

path ID. However, the cited portions of Matthews do not compare the path ID "to 

indices on a path selection table" or "select the path associated with an index equal 

to" the path ID." Rather, the path ID in Matthews identifies the selected path itself. 

Paragraph [0031] of Matthews explains this as follows: the path ID "indicate[s] a 

path via which the packet 200 will travel to reach its destination." As such, there 

would be no need to "compar[e]" the path ID or "select[] the path" in Matthews, 

since the path ID already indicates the selected path.

-473 Case, Dkt. 31-2 at 9; -473 Case, Dkt. 36-2 at 9 (underlining emphasis in original).

In its motions to dismiss, Dell relies on the yellow highlighted portion where (according to 

Dell) the “applicant distinguished the claimed V mod N calculation from hashing.” -473 Case, 

Dkt. 31-2 at 7; -473 Case, Dkt. 36 at 2. But reading the prosecution history in context, the

Applicants were saying the exact opposite of what Dell now contends. As background, it should 

be noted that the Applicant emphasized the patentably distinct features with underlined text (which 

is reproduced in the block quote above). In the first paragraph above, the Applicant specifically 

highlighted “comparing a result of the determining to indices” and “selecting a path” in the 

claim language. -473 Case, Dkt. 31-2 at 9; -473 Case, Dkt. 36-2 at 9. Then in the second paragraph, 

the Applicant went onto to specifically note that the Matthews reference was lacking both features: 

“the cited portions of Matthews do not compare the path ID ‘to indices on a path selection table’

or ‘select the path associated with an index equal to’ the path ID.” -473 Case, Dkt. 31-2 at 9; -

473 Case, Dkt. 36-2 at 9 (emphasis added). These were the features that the Applicant

distinguished.

The Applicant’s reference to “Matthews may mention a modulus operation, the modulus 

operation is merely performed on a hash value to obtain a path ID” is showing the exactly the 

opposite of what Dell claims. Dell claims this portion is evidence of the Applicant “distinguished 

the claimed V mod N calculation from hashing in order to overcome the prior art.” Dkt. 31-2 at 7; 

-473 Case, Dkt. 36 at 2. Rather than distinguish, the Applicant is acknowledging in this passage 

how the “V mod N” claim term would read on hashing but going on to highlight that the Matthews 

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 11 of 13
9

reference in its entirety is insufficient because of the two lacking features discussed in the prior 

paragraph: “comparing the result...” and “selecting the path.”

Even if Dell was correct in its interpretation of the prosecution history (for the record, 

WSOU maintains that Dell’s interpretation is not plausible under any circumstances), “remarks 

made to distinguish claims from the prior art are broader than necessary to distinguish the prior 

art, the full breadth of the remark is not a clear and unambiguous disavowal of claim scope as 

required to depart from the meaning of the term provided in the written description.” 3M Innovative 

Properties Co. v. Avery Dennison Corp., 350 F.3d 1365, 1373 (Fed. Cir. 2003). Here, according

to Dell’s interpretation, the Applicant noted three distinctions from the prior art reference: (i) that 

V mod N is distinguished from hashing in Matthews; (ii) that Matthews lacked “comparing the 

result ...”; and (iii) that Matthews lacked “selecting the path.” The Applicant thus made remarks 

that were “broader than necessary to distinguish the prior art”—i.e., any one of the three bases 

would distinguish. Accordingly, there is no clear disavowal even under Dell’s interpretation of 

the prosecution history. See id.

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 12 of 13
10

Dated: February 17, 2021 Respectfully submitted,

By: /s/ Ryan S. 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 

Jeff 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 

Jeff@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 February 17, 

2021.

/s/ Ryan S. Loveless

Ryan S. Loveless 

Case 6:20-cv-00473-ADA Document 74 Filed 02/17/21 Page 13 of 13