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.,

Defendant.

§

§

§

§

§

§

§

§

§

§

CIVIL ACTION 6:20-cv-00487-ADA

CIVIL ACTION 6:20-cv-00488-ADA

CIVIL ACTION 6:20-cv-00494-ADA

CIVIL ACTION 6:20-cv-00496-ADA

PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 1 of 30
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TABLE OF CONTENTS

I. U.S. Patent No. 7,489,929 (Case No. 6:20-cv-00488-ADA)................................................. 1

A. Overview of the ’929 patent .......................................................................................... 1

B. ZTE’s proposed importation from the specification is riddled with error............... 2

1. “buffering bearer traffic” (claim 11).................................................................................2

C. ZTE failed to disclose and hence preserve any indefiniteness theory....................... 5

2. “characteristic” (claims 14)...............................................................................................5

3. “replacement hysteresis” (claim 14) .................................................................................5

II. U.S. Patent No. 7,742,534 (Case No. 6:20-cv-00496-ADA)................................................. 7

A. Overview of the ’534 patent .......................................................................................... 7

B. ZTE’s indefinite challenges are untenable .................................................................. 8

1. “maximal number of sub-carriers” (claim 4) ....................................................................8

2. “means for selecting said set of sub-carriers on which said user data is to be 

received from said transmitter” (claim 6).........................................................................9

3. “means for determining quality levels for sub-carriers” (claim 6)....................................9

C. ZTE’s only offered construction is erroneous........................................................... 12

4. “quality levels” (claims 1, 2, 3, 5−9, 13, 16−18) “as a function of” (claims 1, 6, 

16) ...................................................................................................................................12

III. U.S. Patent No. 8,451,839 (Case No. 6:20-cv-00487-ADA)............................................... 14

A. Overview of the ’839 patent ........................................................................................ 14

B. ZTE failed to disclose and hence preserve any indefiniteness theory..................... 15

5. “route-related information” (claims 1, 3, 6, 8) & “route” (claims 1, 6, 11)....................15

6. “said predefined using time indicates[ing] a [the] using time of said route” 

(claims 1, 6) ....................................................................................................................15

7. “using time” (claims 1, 6) ...............................................................................................17

IV. U.S. Patent No. 9,185,036 (Case No. 6:20-cv-00494-ADA)............................................... 20

A. Overview of the ’036 patent ........................................................................................ 20

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 2 of 30
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C. Disputed terms of the ’036 patent............................................................................... 20

1. “data flow” (claims 1, 6-10, 12, 17−21, 23−24) “to enable thereby the control 

of at least one data flow” (claims 1, 12, 23−24) “data flow is controlled” 

(claim 7−9, 18−20) “a data flow” (claims 1, 6, 17, 23) “the data flow” (claim 

7−9, 18−20).....................................................................................................................20

2. “congestion condition to enable thereby the control of at least one data flow in 

a manner tending to reduce the congestion condition” (claims 1, 12, 23, 24) 

“congestion condition” (claims 1−4, 6, 12−15, 17, 23−24) “indication that a 

congestion condition exists” (claims 1, 23)....................................................................22

3. “end-node associated with the congestion condition” (claims 1, 12, 23, 24) .................23

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 3 of 30
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TABLE OF AUTHORITIES

Cases

AGIS Software Dev., LLC v. Huawei Device USA Inc.,

No. 2:17-CV-513-JRG, 2018 WL 4908169 (E.D. Tex. Oct. 10, 2018).................................... 10

Bicon, Inc. v. Straumann Co.,

441 F.3d 945 (Fed. Cir. 2006)..................................................................................................... 2

Blue Calypso, Inc. v. Groupon, Inc.,

93 F. Supp. 3d 575 (E.D. Tex. 2015) ........................................................................................ 23

CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co. KG,

224 F.3d 1308 (Fed.Cir.2000)................................................................................................... 13

Cat Tech LLC v. TubeMaster, Inc.,

528 F.3d 871 (Fed. Cir. 2008)..................................................................................................... 2

Cisco Sys., Inc. v. TQ Delta, LLC,

928 F.3d 1359 (Fed. Cir. 2019)................................................................................................... 4

Cole v. Kimberly-Clark Corp.,

102 F.3d 524 (Fed. Cir. 1996)................................................................................................... 10

Dayco Prod., Inc. v. Total Containment, Inc.,

258 F.3d 1317 (Fed. Cir. 2001)............................................................................................... 3, 4

Fisher-Rosemount Sys., Inc. v. Invensys Sys., Inc.,

No. A-13-CA-587-SS, 2015 WL 1275910 (W.D. Tex. Mar. 19, 2015) ..................................... 4

Horizon Pharma, Inc. v. Dr. Reddy's Laboratories Inc.,

-- Fed.Appx. --, 2021 WL 48428 (Fed. Cir. 2021).................................................................... 13

Karlin Technology, Inc. v. Surgical Dynamics, Inc.,

177 F.3d 968 (Fed. Cir. 1999)................................................................................................... 13

Lecat’s Ventriloscope v. MT Tool & Mfg.,

351 F. Supp. 3d 1100 (N.D. Ill. 2018) ............................................................................... passim

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

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

Pause Technology, LLC v. TiVo, Inc.,

419 F.3d 1326 (Fed. Cir. 2005)................................................................................................. 13

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)....................................................................................... 4, 19, 23

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 4 of 30
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Power Mosfet Techs., L.L.C. v. Siemens AG,

378 F.3d 1396 (Fed. Cir. 2004)................................................................................................... 2

Sinorgchem Co., Shandong v. Int’l Trade Comm’n,

511 F.3d 1132 (Fed. Cir. 2007)................................................................................................... 4

SIPCO, LLC v. Emerson Electric Co.,

-- Fed. Appx. --, 2019 WL 6998644 (Fed. Cir. 2019)............................................................... 13

Spansion, Inc. v. Int'l Trade Comm’n,

629 F.3d 1331 (Fed. Cir. 2010)................................................................................................... 5

SunRace Roots Enterprise Co., Ltd. v. SRAM Corp.,

336 F.3d 1298 (Fed. Cir. 2003)........................................................................................... 13, 19

USB Bridge Sols., LLC v. Buffalo Inc.,

1-17-CV-001158-LY, 2020 WL 1906898 (W.D. Tex. Apr. 17, 2020).................................... 23

Warner-Lambert Co. v. Apotex Corp.,

316 F.3d 1348 (Fed. Cir. 2003)................................................................................................. 18

Whirlpool Corp. v. Ozcan,

No. 2:15-CV-2103-JRG, 2016 WL 7474517 (E.D. Tex. Dec. 29, 2016) .......................... passim

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)................................................................................................. 10

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 5 of 30
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Plaintiff WSOU Investments, LLC d/b/a Brazos License and Development (“WSOU”)

submits the following opening claim construction brief pursuant to the Order Governing 

Proceedings (“OGP”) and the Scheduling Order entered in this case. 

I. U.S. Patent No. 7,489,929 (Case No. 6:20-cv-00488-ADA)

A. Overview of the ’929 patent

U.S. Patent No. 7,489,929 (“the ’929 patent”) has an actual filing date of Mar. 31, 2005 

(and hence pre-AIA statutes apply). In certain embodiments, the ’534 patent generally addresses 

“the need for an improved technique for completing handoffs in” Code Division Multiple Access 

or “CDMA” systems. ’929 patent, 3:47‒48. The ’929 provides the following backdrop:

As a mobile station moves from one cell to another, communications for 

that mobile station should be handled by different base stations at different 

times. As a mobile station moves from one cell to another cell, the 

communications for that mobile station are transferred from the base station 

serving the one cell to the base station serving the other cell.

Id., 1:20‒25. Fig. 1 of the ’929 patent, reproduced below, “schematically shows selected portions 

of a wireless communication network that utilizes a handoff procedure designed according to an 

embodiment of this invention.” Id., 4:31‒33.

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Among other technical problems, the ’929 patent recognized that “[i]t has not previously 

been possible to complete a handoff for dedicated channels in CDMA systems without using soft 

handoff procedures with sufficient reliability. In the absence of soft handoff for a dedicated 

channel, the switch from one cell to another should be very quick to avoid dropping a call.” Id., 

3:23‒27. Accordingly, the ’929 patent generally describes certain embodiments as addressing “the 

need for an improved technique for completing handoffs in CDMA systems.” Id., 3:47‒48. 

B. ZTE’s proposed importation from the specification is riddled with error

1. “buffering bearer traffic” (claim 11)

WSOU’s Position ZTE’s Position

Plain and ordinary meaning. During a handoff process, all data from the mobile 

station is buffered at the mobile station or all data 

at the network side is buffered at the network side 

until the handoff process is complete.

The phrase “buffering bearer traffic” (recited only in dependent claim 11) requires no 

construction, particularly in view of its surrounding context. The claim language itself expressly 

qualifies the “buffering” in terms of what must be buffered (i.e., “buffering bearer traffic”) and 

when (i.e., “while performing steps (A) though (F)” of claim 1).

ZTE errs in seeking to rewrite the disputed term to require that the “buffering” must occur 

“during a handoff process.” No such “during” requirement is necessary or appropriate here at least 

because claim 11 already expressly qualifies the “buffering” in terms of “while performing steps 

(A) though (F)” of claim 1 (the “while” qualification). Moreover, ZTE cannot correctly defend its 

“during” rewrite as allegedly being nothing more than a restatement of the “while” qualification. 

This is because “interpretations that render some portion of the claim language superfluous are 

disfavored.” Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410 (Fed. Cir. 2004); 

see also Cat Tech LLC v. TubeMaster, Inc., 528 F.3d 871, 885 (Fed. Cir. 2008) (refusing to adopt 

a claim construction which would render a claim limitation meaningless); Bicon, Inc. v. Straumann 

Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (explaining that “claims are interpreted with an eye toward 

giving effect to all terms in the claim”).

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 7 of 30
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ZTE compounds its error in seeking to rewrite “bearer traffic” as “all data” instead. On its 

face, ZTE’s impermissible rewrite would appear to require that the claimed “buffering” must 

indiscriminately pertain to “all data,” as opposed to the explicit requirement that the “buffering” 

need only pertain to “bearer traffic” in particular. Even worse, ZTE’s untethered construction 

seeks to require that “all data” must be buffered “until the handoff process is complete.” In other 

words, according to ZTE, the buffering must be universal as to “all data” and it must last for the 

entire duration of a so-called “handoff process” (a phrase not recited in any of the claims). Such 

an impermissible rewrite runs afoul of the proscription against “adding limitations to claims not 

required by the claim terms themselves, or unambiguously required by the specification or 

prosecution history.” Dayco Prod., Inc. v. Total Containment, Inc., 258 F.3d 1317, 1327 (Fed. 

Cir. 2001) (citation omitted).

Far from requiring ZTE’s untethered interpretation, the surrounding claim language refutes

it. Even if one were to consider steps (A) through (F) of claim 1 to each be part of what ZTE refers 

to as “a handoff process” (a phrase not recited in any of the claims), step (C) reveals that “all data” 

is not necessarily buffered. This is because step (C) expressly requires “transmitting an active set 

update message to the mobile station using the existing link between the serving base station and 

the mobile station.” It is also significant that certain dependent claims recite additional processing 

steps (e.g., claims 6, 8, 9, 10, etc.). This reveals that steps (A) through (F) cannot properly be 

interpreted as necessarily reciting (collectively) an exhaustive set of steps for a so-called “handoff 

process.” Because claim 11 expressly qualifies its “buffering” in terms of “while performing steps 

(A) though (F),” it cannot be correctly said that the “buffering” of claim 11 must be universal as 

to “all data” or that it must last “until the handoff process is complete” (as ZTE seeks to require).

ZTE further errs in seeking to restrict the “buffering” of claim 11 in terms of alleged 

mutually exclusive locations—i.e., “all data from the mobile station is buffered at the mobile 

station or all data at the network side is buffered at the network side.” Such an impermissible 

rewrite further runs afoul of the proscription against “adding limitations to claims not required by 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 8 of 30
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the claim terms themselves, or unambiguously required by the specification or prosecution 

history.” Dayco, 258 F.3d at 1327.

It is expected ZTE will attempt to justify its rewrite of the claim language by pointing to a 

non-limiting description of a “disclosed example” in the specification. Specifically, the 

specification describes a particular “disclosed example,” in part, as follows:

Another feature of the disclosed example is that all user data for a mobile 

station involved in the example handoff process is buffered during the 

handoff process. In other words, all data from the mobile station is buffered 

at the mobile station and all data at the network side is buffered at the 

network side until the handoff process is complete. 

’929 patent, 6:34−30. Here, the specification does not provide unambiguous lexicography or 

disclaimer that would justify rewriting the term “buffering bearer traffic” (recited in claim 11) in 

the manner ZTE proposes.1

 Indeed, the claim term “bearer traffic” is not even expressly invoked 

in this passage. Under the circumstances, it would be a “cardinal sin” to import the above 

description of a “disclosed example” as a claim limitation. Phillips v. AWH Corp., 415 F.3d 1303, 

1320 (Fed. Cir. 2005) (en banc) (“One of the cardinal sins of patent law [is] reading a limitation 

from the written description into the claims.”) (citation omitted). This would be true even if the 

above passage were the only disclosed embodiment involving a form of buffering (it is not). Cisco 

Sys., Inc. v. TQ Delta, LLC, 928 F.3d 1359, 1364 (Fed. Cir. 2019) (“it is improper to read 

limitations from a preferred embodiment described in the specification—even if it is the only 

embodiment—into the claims absent a clear indication in the intrinsic record that the patentee 

intended the claims to be so limited.”) (citation omitted).

1 See Fisher-Rosemount Sys., Inc. v. Invensys Sys., Inc., No. A-13-CA-587-SS, 2015 WL 1275910, 

at *11 (W.D. Tex. Mar. 19, 2015) (“Lexicography only arises when the patent drafter ‘clearly, 

deliberately, and precisely define[s] the term.’ Clear definitions are usually set off by quotation 

marks or are marked by the word ‘is.’”) (quoting Sinorgchem Co., Shandong v. Int’l Trade 

Comm’n, 511 F.3d 1132, 1136 (Fed. Cir. 2007)). 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 9 of 30
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C. ZTE failed to disclose and hence preserve any indefiniteness theory 

2. “characteristic” (claims 14)

WSOU’s Position ZTE’s Position

Plain and ordinary meaning. Indefinite under 35 U.S.C. § 112(b).2

3. “replacement hysteresis” (claim 14)

WSOU’s Position ZTE’s Position

Plain and ordinary meaning. Indefinite under 35 U.S.C. § 112(b).3

The disputed “characteristic” and “replacement hysteresis” terms, recited only in 

dependent claim 14, are both presumptively definite. Each term, when read in light of the intrinsic 

evidence, presumptively 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). Dependent claim 14 is reproduced below. 

4. The method of claim 1, comprising

determining a characteristic of the existing link;

determining the characteristic of the new link;

determining a difference between the determined characteristics; and

performing step (A) if the determined difference exceeds a threshold that 

is selected to minimize replacement hysteresis.

’929 patent, claim 14 (8:42−49) (emphasis added).

For both disputed terms, the burden rests with ZTE to overcome the presumption of 

definiteness by clear and convincing evidence. It is unclear how ZTE maintains it can possibly 

meet its burden here, given ZTE has waived any reliance on expert testimony to support its 

position. See, e.g., Lecat’s Ventriloscope v. MT Tool & Mfg., 351 F. Supp. 3d 1100, 1114 (N.D. 

Ill. 2018) (finding a “garden-variety theory of indefiniteness ‘requires a determination whether 

those skilled in the art would understand what is claimed’”); Spansion, Inc. v. Int'l Trade Comm’n, 

2 It is unclear why ZTE newly cites the AIA statute in articulating its indefiniteness position. As 

ZTE previously acknowledged in its Invalidity Contentions (quoted above), pre-AIA 34 U.S.C. 

§ 112, ¶ 2 governs here, due to the effective filing date of the ’929 patent. 

3 See note 2, supra. 

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629 F.3d 1331, 1344 (Fed. Cir. 2010) (citation omitted) (“the Court [should] conclude[] that expert 

testimony is necessary here to meet the exacting burden of proof.”); Whirlpool Corp. v. Ozcan, 

No. 2:15-CV-2103-JRG, 2016 WL 7474517, at *3 (E.D. Tex. Dec. 29, 2016) (rejecting 

indefiniteness contention and noting that the accused infringer only provided attorney arguments 

to support its position, and no expert testimony).

ZTE also failed to provide any notice as to any indefiniteness theory for either of the two 

terms of the ’929 patent ZTE purports to challenge—namely, the “characteristic” and “replacement 

hysteresis” terms. ZTE’s Invalidity Contentions merely provide a bulleted list of claim language 

which includes the above terms (among others). Ex. A, ZTE’s Invalidity Contentions dated Jan. 

6, 2021, at 53. ZTE introduced its bulleted list with the following conclusory and ambiguous 

statement: “[b]ased on ZTE’s present understanding of (and Plaintiff’s apparent interpretation of) 

the Asserted Claims, the Asserted Claims of the ’929 Patent below fail to satisfy the requirements 

of § 112, ¶ 2 because the claims fail to point out and distinctly claim the subject matter which the

inventors regard as the alleged invention for the following terms[.]” That single, conclusory 

statement is literally all that ZTE opted to disclose in connection with its present challenge of the 

“characteristic” and “replacement hysteresis” terms.

In the absence of any notice of the alleged basis for ZTE’s indefiniteness position, WSOU 

is prejudiced in its ability to address the dispute over these terms in its opening brief. ZTE should 

not be allowed to lie behind the log on this dispute (injected by ZTE alone) and then force WSOU 

to relegate its entire rebuttal argument to its reply only. Because ZTE failed to provide any notice 

if its positions on indefiniteness, and in the absence of any expert testimony, the presumption 

stands unrebutted that the “characteristic” term, when read in light of the intrinsic evidence, 

informs one of skill in the art at the time of the invention “about the scope of the invention with 

reasonable certainty.” Nautilus, 572 U.S. at 910−11. 

Without speculating as to why ZTE contends the disputed terms are allegedly indefinite, 

WSOU submits that at least the following description of an example embodiment is relevant to the 

disputed terms:

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Typical soft handoff procedures may include adding a new leg to the active 

set, removing an existing leg from the active set or, if the active set is full, 

replacing an existing member of the active set with a new member. For each 

of these events during a handoff procedure, there is a hysteresis for a 

handoff decision. Typical hysteresis thresholds are on the order of 1 dB. If 

a member of the active set has a pilot signal strength, for example, that is 1 

dB less than a candidate base station, the latter may become a member of 

the active set to replace an existing member when that threshold difference, 

which is specified by the selected replacement hysteresis, occurs.

’929 patent, 2:59−3:2.4

II. U.S. Patent No. 7,742,534 (Case No. 6:20-cv-00496-ADA)

A. Overview of the ’534 patent

U.S. Patent No. 7,742,534 (“the ’534 patent”) has an actual filing date of Jul. 11, 2006 and 

claims priority to a foreign application filed August 1, 2005 (and hence pre-AIA statutes apply). 

The ’534 patent generally “relates to a method for optimizing the use of the feedback forward 

cannel in multi-carrier systems.” ’534 patent, 1:10‒13. The ’534 patent recognized that “[a] very 

important task of multi carrier systems [is] to provide for an efficient subcarrier/modulation 

allocation to the different users.” Id., 1:43‒46. However, in certain mobile environments involving 

multipath radio carriers, sub-carriers may be subject to very strong carrier attenuation. In certain 

instances, such sub-carriers would be uselessly allocated to a user device experiencing fading 

when, instead, they could have been received with good quality by other users. Id., 1:46‒53. Other 

attempts to address this issue involved use of signaling information that “consumes a not negligible 

bandwidth and time so that the effective payload data rate is reduced accordingly.” Id., 1:60‒63.

In view of these example technical problems, among others, the ’534 patent states that “[a]

particular object of the present invention is to provide a method for sending information on the 

sub-carriers to be used between a transmitter and a receiver in a more efficient way so that the 

amount of signaling information in the feed forward carrier is reduced but anyway sufficient for 

4 Cited passage is offered as an example and not meant to be exhaustive of all relevant disclosure.

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 12 of 30
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performing an efficient resource allocation in the multi carrier system. [¶] Another object of the 

invention is to provide a corresponding receiver.” Id., 2:1‒8.

B. ZTE’s indefinite challenges are untenable

1. “maximal number of sub-carriers” (claim 4)

WSOU’s Position ZTE’s Position

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

The burden rests with ZTE to overcome the presumption of definiteness, by clear and 

convincing evidence, for the phrase “maximum number of sub-carriers” (recited in claim 4 only).5

It is unclear how ZTE maintains it can possibly meet its burden here, given ZTE has waived any 

reliance on expert testimony to support its position. See, e.g., Lecat’s Ventriloscope, 351 F. Supp. 

3d at 1114 (N.D. Ill. 2018); Whirlpool Corp., 2016 WL 7474517, slip. op. at *3. 

ZTE also failed to provide any notice as to its alleged indefiniteness theory for this term. 

ZTE’s Invalidity Contentions merely provide a bulleted list of claim language which includes the 

above terms (among others). Ex. A, ZTE’s Invalidity Contentions dated Jan. 6, 2021, at 52. ZTE 

introduced its bulleted list with the following conclusory and ambiguous statement: “[b]ased on 

ZTE’s present understanding of (and Plaintiff’s apparent interpretation of) the Asserted Claims, 

the Asserted Claims of the ’534 Patent below fail to satisfy the requirements of § 112, ¶ 2 because 

the claims fail to point out and distinctly claim the subject matter which the inventors regard as 

the alleged invention for the following terms[.]” That single, conclusory statement is literally all

that ZTE opted to disclose in connection with its present challenge of the phrase “maximal number 

of sub-carriers” (as recited in claim 4).

In the absence of any notice of the alleged basis for ZTE’s indefiniteness position, WSOU 

is prejudiced in its ability to address the dispute over these terms in its opening brief. ZTE should 

5 ZTE also purports to challenge the definiteness of the term “a maximum number of sub-carriers,” 

as recited in claim 7. It is unclear why ZTE feels justified in its position that these two distinct 

phrases, recited in differing contexts, can somehow be counted as one term against the Court’s 

order (dated Feb. 26, 2021) expressly limiting ZTE to a certain number of terms per group of cases. 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 13 of 30
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not be allowed to lie behind the log on this dispute (injected by ZTE alone) and then force WSOU 

to relegate its entire rebuttal argument to its reply only. Because ZTE failed to provide any notice 

if its positions on indefiniteness, and in the absence of any expert testimony, the presumption 

stands unrebutted that the disputed phrase, when read in light of the intrinsic evidence, informs 

one of skill in the art at the time of the invention “about the scope of the invention with reasonable 

certainty.” Nautilus, 572 U.S. at 910−11. 

Without speculating as to why ZTE contends the disputed phrase is allegedly indefinite, 

and while the claim language in question speaks for itself, WSOU submits that a person of ordinary 

skill would understand the claim language with reasonable certainty in further view of certain 

relevant descriptions of example embodiments. See, e.g., ’543 patent, 3:26−32; 4:5−14; 5:48−52; 

etc.6 

2. “means for selecting said set of sub-carriers on which said user data is to 

be received from said transmitter” (claim 6)

WSOU’s Position ZTE’s Position

Not subject to 35 U.S.C. § 112, ¶6.

If construed as means-plus-function under 

§ 112, ¶6, however, then 

Function: “selecting said set of sub-carriers on 

which said user data is to be received from said 

transmitter” and

Structure: receiver.

Governed by 35 U.S.C. § 112(f).

Function: selecting a set of sub-carriers from 

the plurality of sub-carriers on which user data is 

to be communicated from a transmitter to a 

receiver”

Structure: none and hence indefinite under 35 

U.S.C. § 112(b).

7

3. “means for determining quality levels for sub-carriers” (claim 6)

WSOU’s Position ZTE’s Position

Not subject to 35 U.S.C. § 112, ¶6.

If construed as means-plus-function under 

§ 112, ¶6, however, then 

Governed by 35 U.S.C. § 112(f).

Function: “determining quality levels for subcarriers”

6 These example citations are not meant to be exhaustive of all relevant disclosure.

7 It is unclear why ZTE newly cites the AIA statute in articulating its indefiniteness position. As 

ZTE previously acknowledged in its Invalidity Contentions (quoted above), pre-AIA 34 U.S.C. 

§ 112, ¶ 2 governs here, due to the effective filing date of the ’534 patent. 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 14 of 30
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Function: “determining quality levels for subcarriers”

Structure: receiver.

Structure: none disclosed, and hence indefinite 

under 35 U.S.C. § 112(b).

8

It is both curious and improper that ZTE presents its dispute over the distinct “means for 

selecting . . .” and “means for determining . . .” terms as somehow constituting a single dispute. 

ZTE improperly counted these two distinct terms as one in order to underreport the total number 

of disputed terms, in view of the Court’s email (dated February 26, 2021) ordering ZTE to comply 

with the Court’s term limits. A portion of the Court’s email Order is reproduced below:

Court Order dated February 26, 2021, issued through e-mail from Robert Earle, Law Clerk to the 

Hon. Alan D. Albright , United States District Court – Western District of Texas. 

Use of the words “means for” in both disputed terms gives rise to a rebuttable presumption 

that these terms are each subject to pre-AIA 35 U.S.C. § 112, ¶6. Williamson v. Citrix Online, 

LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015) (en banc). This presumption is rebutted where a claim 

limitation recites, from the perspective of one of skill in the art, sufficiently definite structure that 

performs the claimed function. The Federal Circuit has articulated the § 112, ¶ 6 test in a negative 

as follows: “[t]o invoke [35 U.S.C.A. § 112, ¶ 6] the alleged means-plus-function claim element 

must not recite definite structure which performs the described function.” Cole v. Kimberly-Clark 

Corp., 102 F.3d 524, 531 (Fed. Cir. 1996) (emphasis added); see also AGIS Software Dev., LLC 

v. Huawei Device USA Inc., No. 2:17-CV-513-JRG, 2018 WL 4908169, at *18 (E.D. Tex. Oct. 

8 See note 7, supra. 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 15 of 30
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10, 2018) (collecting cases, including Cole v. Kimberly-Clark Corp). Under the controlling 

Federal Circuit precedent, the presumption is rebutted here.

Claim 6 recites both disputed terms in the context of “said receiver comprising: . . . .” ’534 

patent, 6:38−39. Thus, the claim language expressly identifies “said receiver” as the definite 

structure for performing both “means for” limitations. 

This explicit identification of the “receiver” as the corresponding structure for both the 

“selecting” and “determining” limitations is consistent with the remainder of the specification of 

the ’534 patent. That the receiver is the corresponding structure is explicitly confirmed in the 

following disclosure: “[t]hese objects, and others that appear below, are achieved by a method for 

transmitting user data in a multi-carrier radio communication system according to claim 1, and a 

receiver according to claim 6.” ’534 patent, 2:12−15. In addition, Figure 4 (reproduced below) 

and its accompanying description disclose the receiver as the corresponding structure.

Id., Fig. 4 (yellow highlighting added); see also id., 3:9−13 (“Thanks, to additional and concordant 

information present at the transmitter 12 and at the receiver 11, the receiver 11 is able to deduce 

from the indication related to a threshold the set of sub carriers on which the transmission will be 

performed by base station 1.”); 5:38−42 (“The receiver comprises means 41 for selecting a set of 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 16 of 30
12

sub-carriers to receive user data from a transmitter, . . . [and] means 43 for determining a quality 

level for each sub carriers or for groups of sub carriers.”). The specification also illustrates mobile 

terminal 11 schematically as having a receiver, as shown by the highlighted portion of Fig. 1 

reproduced below:

Id., Fig. 1 (highlighting added); see also id., 3:60−67 (“Step 22 consists in determining at the 

mobile terminal a quality level for the sub carriers of the multi carrier system.”). That the claimed 

“receiver” itself connotes definite structure is also confirmed, for example, by the following 

disclosure: “[i]n a preferred embodiment of the present invention, the receiver is a terminal of an 

OFDMA system for example but not restricted to HSDPA or WIMAX.” Id., 5:53−55.

For the foregoing reasons, the claim language itself contains sufficiently definite structure 

for the disputed “means for” terms by reciting both are included within and are part of the claimed 

“receiver.” If the Court finds the presumption is not rebutted, however, then the respective 

function should be construed as set forth in the tables above and the corresponding structure should 

be the “receiver” disclosed in the specification of the ’534 patent (and equivalents thereof). ZTE’s 

untenable position that neither the claim language nor the specification discloses any

corresponding structure for either disputed “means for” term is plainly incorrect.

C. ZTE’s only offered construction is erroneous

4. “quality levels” (claims 1, 2, 3, 5−9, 13, 16−18)

“as a function of” (claims 1, 6, 16)

WSOU’s Position ZTE’s Position

Plain and ordinary meaning. One of a signal-to-interference ratio, a bit error 

rate, or a modulation scheme.

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 17 of 30
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The terms “quality levels” and “as a function of” require no construction here, particularly 

in view of their surrounding context and the remainder of the intrinsic evidence. It is unclear why 

ZTE groups together these two distinct terms as single term, and then offers the same claim 

construction for both terms. The claim language itself expressly differentiates these terms by 

separately reciting both in the same claim. See, e.g., ’534 patent, claim 1 at 5:63 and 6:7. These 

expressly-differentiated terms presumptively do not have the same meaning. See, e.g., Pause 

Technology, LLC v. TiVo, Inc., 419 F.3d 1326, 1334 (Fed. Cir. 2005) (holding every distinct term 

in a patent should be given meaningful effect, where possible); CAE Screenplates, Inc. v. Heinrich 

Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed.Cir.2000) (“In the absence of any evidence 

to the contrary, we must presume that the use of these different terms in the claims connotes 

different meanings.”); SIPCO, LLC v. Emerson Electric Co., -- Fed. Appx. --, 2019 WL 6998644, 

*3 (Fed. Cir. 2019) (nonprecedential) (finding error in a construction that gave the same meaning 

to two distinct terms recited in the same claim, the Federal Circuit instructing that “because the 

patentee chose to use different terms to define the ‘receiver address’ and the ‘scalable address,’ we 

presume that those two terms have different meanings”) (citing Chicago Bd. Options Exch., Inc. 

v. Int’l Securities Exch., LLC, 677 F.3d 1361, 1369 (Fed. Cir. 2012)); Horizon Pharma, Inc. v. Dr. 

Reddy's Laboratories Inc., -- Fed.Appx. --, 2021 WL 48428, *3 (Fed. Cir. 2021) (nonprecedential) 

(finding that separate use of both terms “target” and “produce” suggested separate meanings).

ZTE’s proposed construction is also presumptively incorrect as it would violate the 

doctrine of claim differentiation. The Federal Circuit has instructed that the doctrine of claim 

differentiation “create[s] a presumption that each claim in a patent has a different scope” and 

“[t]hat presumption is especially strong when the limitation in dispute is the only meaningful 

difference between an independent and dependent claim, and one party is urging that the limitation 

in the dependent claim should be read into the independent claim.” SunRace Roots Enterprise Co., 

Ltd. v. SRAM Corp., 336 F.3d 1298, 1302–03 (Fed. Cir. 2003) (emphasis added); see also Karlin 

Technology, Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971–72 (Fed. Cir. 1999) (“The doctrine 

[of claim differentiation] . . . normally means that limitations stated in dependent claims are not to 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 18 of 30
14

be read into the independent claim form which they depend.”). The presumption arising here is 

“especially strong” because ZTE seeks to import virtually the entirety of claim 8, verbatim, into 

claim 6 (from which claim 8 depends). Specifically, claim 8 further limits independent claim 6 by 

reciting, “[t]he apparatus set forth in claim 6 wherein each sub-carrier quality level identifies at 

least one of a signal-to-interference ratio, a bit error rate, and a modulation scheme for a 

corresponding sub-carrier or a corresponding sub-carrier group.” Under the circumstances, the 

doctrine gives rise to an especially strong presumption against importing these additional 

limitations recited in dependent claim 8 into independent claim 6. But that is precisely what ZTE 

seeks to do. 

III. U.S. Patent No. 8,451,839 (Case No. 6:20-cv-00487-ADA)

A. Overview of the ’839 patent

U.S. Patent No. 8,451,839 (“the ’839 patent”) has an actual filing date of August 14, 2007 

and claims priority to a foreign application filed September 7, 2006 (and hence pre-AIA statutes 

apply). The Abstract summarizes an example embodiment as follows:

The present invention provides a method for creating routes in access devices of 

the communication network by using access response messages. With the method 

provided by the present invention, services can be distinguished and forwarded 

based on destination IP sub-networks, so that different services can be distributed 

in access devices. In this way, on the premise that services are distinguished based 

on layer 3, the requirements for access devices are reduced and layer 2 networks on 

the user side are not required to carry out route protocols, which decreases 

administrators’ maintenance work and is the important condition for the realization 

of plug&play and reduces the requirements for marginal routers.

’839 patent, Abstract (highlighting and emphasis added). Figure 3b of the ’839 patent is 

reproduced below, with consistent highlighting added to emphasize the access device, according 

to the illustrated embodiment. 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 19 of 30
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B. ZTE failed to disclose and hence preserve any indefiniteness theory 

5. “route-related information” (claims 1, 3, 6, 8) & “route” (claims 1, 6, 11)

WSOU’s Position ZTE’s Position

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

6. “said predefined using time indicates[ing] a [the] using time of said 

route” (claims 1, 6)

WSOU’s Position ZTE’s Position

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

The burden rests with ZTE to overcome the presumption of definiteness, by clear and 

convincing evidence, for the three disputed terms / phrases (1) “route-related information” (claims 

1, 3, 6, and 8), (2) “route” (claims 1, 6, and 11), and (3) “said predefined using time indicates[ing] 

a [the] using time of said route” (claims 1 and 6). It is unclear how ZTE maintains it can possibly 

meet its burden here, given ZTE has waived any reliance on expert testimony to support its 

position. See, e.g., Lecat’s Ventriloscope, 351 F. Supp. 3d at 1114 (N.D. Ill. 2018); Whirlpool 

Corp., 2016 WL 7474517, at slip. op. *3.

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 20 of 30
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ZTE also failed to provide any notice as to its alleged indefiniteness theory for any of these 

three terms / phrases. ZTE’s Invalidity Contentions merely provide a bulleted list of terms and 

phrase which include those listed above. Ex. A, ZTE’s Invalidity Contentions dated Jan. 6, 2021, 

at 52. ZTE introduced its bulleted list with the following conclusory and ambiguous statement: 

“[b]ased on ZTE’s present understanding of (and Plaintiff’s apparent interpretation of) the

Asserted Claims, the Asserted Claims of the ’839 Patent below fail to satisfy the requirements of

§ 112, ¶ 2 because the claims fail to point out and distinctly claim the subject matter which the

inventors regard as the alleged invention for the following terms[.]” That single, conclusory 

statement is literally all that ZTE opted to disclose in connection with its present indefiniteness 

objections to “route-related information” (claims 1, 3, 6, and 8), “route” (claims 1, 6, and 11), and 

“said predefined using time indicates[ing] a [the] using time of said route” (claims 1 and 6). 

In the absence of any notice of the alleged basis for ZTE’s indefiniteness position, WSOU 

is prejudiced in its ability to address the dispute over these terms in its opening brief. ZTE should 

not be allowed to lie behind the log on this dispute (injected by ZTE alone) and then force WSOU 

to relegate its entire argument on this issue to its reply only. Because ZTE failed to provide any

notice of its positions on indefiniteness, and in the absence of any expert testimony, the 

presumption stands unrebutted that the disputed phrase, when read in light of the intrinsic 

evidence, informs one of skill in the art at the time of the invention “about the scope of the 

invention with reasonable certainty.” Nautilus, 572 U.S. at 910−11. 

Without speculating as to why ZTE contends any of the above disputed terms / phrases are 

allegedly indefinite, and while the claim language in question speaks for itself, WSOU submits 

that a person of ordinary skill would understand the claim language with reasonable certainty in 

further view of certain relevant descriptions of example embodiments. See, e.g., ’839 patent, Fig. 

2 and corresponding description at 5:3−41; Fig 4 and corresponding description at 6:15−7:24; etc.9

 

9 These example citations are not meant to be exhaustive of all relevant disclosure.

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 21 of 30
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7. “using time” (claims 1, 6)10

WSOU’s Position ZTE’s Position

Plain and ordinary meaning. Claim 6: Indefinite for lack of antecedent basis 

under 35 U.S.C. § 112(b).

Additionally, meaning “lease time”

The burden rests with ZTE to overcome the presumption of definiteness, by clear and 

convincing evidence, for the disputed term “using time.” It is unclear why ZTE maintains it has 

preserved the right to raise an indefiniteness challenge against each instance of “using time” in 

general. ZTE’s Invalidity Contentions, instead, list the term with its “predefined” qualifier—i.e., 

“predetermined using time.” Ex. A, ZTE’s Invalidity Contentions dated Jan. 6, 2021, p. 57. On 

March 2, 2021, long after ZTE served its Invalidity Contentions, it served its “Second Narrowed 

Claim Terms and Constructions” in which ZTE newly alleged “using time” (without the 

predetermined qualifier) is allegedly “[i]ndefinite for lack of antecedent basis under 35 U.S.C. 

§ 112(b).” Even if ZTE had preserved such a challenge by providing sufficient notice in its 

Invalidity Contentions, and it did not, the new challenge is meritless. 

For ease of reference, claim 1 of the ’839 patent is reproduced below, with “using time” 

emphasized (regardless of whether or not it is immediately preceded by the “predefined” qualifier):

1. A method, in an access device of the communication network, for 

managing route information, comprising:

receiving an access response message from a server;

obtaining route-related information and a predefined using time from said 

access response message, said predefined using time indicates a 

using time of said route; and

updating a route table item in a route table based on said route-related 

information and said predefined using time.

’839 patent, 8:59−67 (claim 1) (emphasis and highlighting added). ZTE has failed to provide 

notice as to which particular instance of “using time” recited in claim 1 allegedly lacks antecedent 

10 It is unclear why ZTE’s “Second Narrowed Claim Terms and Constructions” (dated March 2, 

2021) also identified claim 11 in purporting to seek construction of “using time.” That term is not 

recited in claim 11 of the ’839 patent. 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 22 of 30
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basis. When recited as “said predefined using time,” use of the words “said predefined” is an 

explicit reference to those antecedent instances also qualifying the term as “predefined using time.”

The presumption of definiteness stands for claim 1.

ZTE also alleges, without explanation, that “using time” lacks antecedent basis in 

independent claim 6. For ease of reference, claim 6 of the ’839 patent is reproduced below, again 

with “using time” emphasized: 

6. A route management apparatus, in an access device of the communication 

network, for managing route information, comprising:

a receiver configured to receive an access response message from a server;

a first obtainer configured to obtain route-related information and a 

predefined using time from said access response message, said 

predefined using time indicating the using time of said route; and

a route maintainer configured to update a route table based on said routerelated information and said predefined using time.

’839 patent, 8:59−67 (claim 6) (emphasis and highlighting added). As with claim 1, use of the 

words “said predefined” in claim 6 is an explicit reference to those antecedent instances likewise 

qualifying the term as “predefined using time.” 

That claim 6 uses the definite article “the” in the phrase “the using time of said route” does 

not render “using time of said route” indefinite for alleged lack of antecedent reference. Because 

claim 6 consistently uses the word “said” when making antecedent reference, the definite article 

“the” in this context is not an antecedent reference. Rather, use of the definite article “the” in the 

phrase “the using time of said route” simply underscores that “said predefined using time” must 

refer to “the using time of said route,” and not just any route. See Warner-Lambert Co. v. Apotex 

Corp., 316 F.3d 1348, 1356, (Fed. Cir. 2003) (analyzing term “the” in the phrase of a statute “the 

use” as requiring a specific use and not just any use). This plain reading is consistent with the 

remainder of the intrinsic evidence. The specification discloses, for example, that “[i]f said access 

response message further comprises the predefined using time indicating the time which can be 

used by said route[.]” Id., 5:13−15. Here, consistent with the language of claim 6, the specification 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 23 of 30
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uses the definite article “the” in referring to “the time which can be used by said route.” Id. The 

presumption of definiteness stands for claim 6 as well. 

ZTE compounds its error in seeking to restrict “using time” to a single embodiment 

thereof—namely, “lease time.” As explained above, the doctrine of claim differentiation gives 

rise to an “especially strong” presumption against importing limitations from a dependent claim 

into the independent claim from which it depends. SunRace Roots, 336 F.3d at 1302–03; Karlin, 

177 F.3d at 971–72. Claim 5, which depends from claim 1, recites “[t]he method according to 

claim 1, wherein said access response message refers to a dynamic host configuration protocol 

response message, said predefined using time refers to the lease time in said dynamic host 

configuration protocol response message.” ’839 patent, 9:22−26 (claim 5). Because claim 5 

narrows “said predefined using time” as necessarily “refer[ring] to the lease time,” it would be 

inappropriate to construe all instances of “using time” as necessarily referring to “lease time.” 

It is expected ZTE will point the following statement in the specification, which describes 

certain aspects of an example embodiment as follows: “[i]n current network realizations, aforesaid 

access request message and access response message are DHCP messages, and said predefined 

using time is the lease time in the DHCP message.” ’839 patent, 6:11−14. That this statement is 

merely exemplary, and not intended as a universal limitation necessarily applicable to all 

embodiments, is confirmed by the repetition of this same statement elsewhere in the specification, 

in connection with a different embodiment. Id., 7:21−24. There would be no need to repeat the 

statement if either instance were offered as universal qualifier as to all embodiments. Moreover, 

as explained above, dependent claim 5 recites this statement from the specification nearly 

verbatim, thereby confirming it would be a “cardinal sin” to import any aspect of this statement as 

a claim limitation into independent claim 1 (or any other claim for that matter). Phillips, 415 F.3d

at 1320 (“One of the cardinal sins of patent law [is] reading a limitation from the written 

description into the claims.”) (citation omitted).

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 24 of 30
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IV. U.S. Patent No. 9,185,036 (Case No. 6:20-cv-00494-ADA)

A. Overview of the ’036 patent

U.S. Patent No. 9,185,036 (“the ’036 patent”) has an actual filing date of March 23, 2005 

(and hence pre-AIA statutes apply). The ’306 patent generally “relates to computer networks such 

as LANs (local area networks), and more particularly to an intelligent method for reducing network 

congestion via using messages propagated upstream from congestion related nodes.” ’036 patent, 

1:6−10. Among other technical advantages, the ’306 patent addresses inefficiencies in computer 

networking which may arise, for example, in addressing a congestion condition at a network node. 

Id., 1:25−50. For example, certain techniques were incapable of making a distinction, among 

different data flows between various nodes, as to which flow is the cause of the congestion

condition. Id. As another example, certain techniques inefficiently throttled traffic even when 

such traffic did not pass through the node presently having the congestion condition. Id. The ’306 

patent explains that such example inefficiencies may be aggravated in certain circumstances, such 

as “when Ethernet bridges are used to connect nodes (via pathways).” Id. To address these and 

other technical issues, the ’036 patent includes certain embodiments which teach, for example, 

methods and systems for “distinguish[ing] problematic congestion causing flows from the noncongestion causing flows, thus leading to intelligent differentiation in flow control.” Id., 1:64−67.

C. Disputed terms of the ’036 patent

1. “data flow” (claims 1, 6-10, 12, 17−21, 23−24)

“to enable thereby the control of at least one data flow” (claims 1, 12, 

23−24)

“data flow is controlled” (claim 7−9, 18−20)

“a data flow” (claims 1, 6, 17, 23) 

“the data flow” (claim 7−9, 18−20)

WSOU’s Position ZTE’s Position

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

The burden rests with ZTE to overcome the presumption of definiteness, by clear and 

convincing evidence, for each one of the five disputed terms / phrases listed above. Even if ZTE 

had preserved each one of these five distinct indefiniteness challenges it now purports to raise, and 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 25 of 30
21

it did not, it is unclear how ZTE maintains it can possibly meet its burden here, given ZTE has 

waived any reliance on expert testimony to support its position. See, e.g., Lecat’s Ventriloscope, 

351 F. Supp. 3d at 1114 (N.D. Ill. 2018); Whirlpool Corp., 2016 WL 7474517, at slip. op. *3. 

It is both curious and improper that ZTE presents five distinct indefiniteness challenges as 

somehow constituting a single dispute. ZTE improperly counted these five distinct terms / phrases 

as one in order to underreport the total number of disputed terms, in view of the Court’s email 

(dated February 26, 2021) ordering ZTE to comply with the Court’s limit of twelve (12) terms 

total for this group of four cases. In addition, ZTE failed to provide any notice as to its alleged 

indefiniteness theory for any of these terms / phrases. ZTE’s Invalidity Contentions merely 

provide a bulleted list of terms and phrase which include some—but not all—of those listed above. 

Ex. A, ZTE’s Invalidity Contentions dated Jan. 6, 2021, at 54. ZTE introduced its bulleted list 

with the following conclusory and ambiguous statement: “[b]ased on ZTE’s present understanding 

of (and Plaintiff’s apparent interpretation of) the Asserted Claims, the Asserted Claims of the ’036

Patent below fail to satisfy the requirements of § 112, ¶ 2 because the claims fail to point out and 

distinctly claim the subject matter which the inventors regard as the alleged invention for the 

following terms[.]” That single, conclusory statement is literally all that ZTE opted to disclose in 

connection with its present indefiniteness objections. 

In the absence of any notice of the alleged basis for ZTE’s indefiniteness positions for any 

of these five distinct terms, WSOU is prejudiced in its ability to address the dispute over these 

terms in its opening brief. ZTE should not be allowed to lie behind the log on this dispute (injected 

by ZTE alone) and then force WSOU to relegate its entire rebuttal argument to its reply only. 

Because ZTE failed to provide any notice if its positions on indefiniteness, and in the absence of 

any expert testimony, the presumption stands unrebutted that the disputed phrase, when read in 

light of the intrinsic evidence, informs one of skill in the art at the time of the invention “about the 

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

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 26 of 30
22

2. “congestion condition to enable thereby the control of at least one data 

flow in a manner tending to reduce the congestion condition” (claims 

1, 12, 23, 24)

“congestion condition” (claims 1−4, 6, 12−15, 17, 23−24)

“indication that a congestion condition exists” (claims 1, 23)

WSOU’s Position ZTE’s Position

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

The burden rests with ZTE to overcome the presumption of definiteness, by clear and 

convincing evidence, for each one of the three disputed terms / phrases listed above. Even if ZTE 

had preserved each one of these three distinct indefiniteness challenges it now purports to raise, 

and it did not, it is unclear how ZTE maintains it can possibly meet its burden here, given ZTE has 

waived any reliance on expert testimony to support its position. See, e.g., Lecat’s Ventriloscope, 

351 F. Supp. 3d at 1114 (N.D. Ill. 2018); Whirlpool Corp., 2016 WL 7474517, at slip. op. *3. 

It is both curious and improper that ZTE presents three distinct indefiniteness challenges 

as somehow constituting a single dispute. ZTE improperly counted these three distinct 

terms / phrases as one in order to underreport the total number of disputed terms, in view of the 

Court’s email (dated February 26, 2021) ordering ZTE to comply with the Court’s limit of twelve 

(12) terms total for this group of four cases. In addition, ZTE failed to provide any notice as to its 

alleged indefiniteness theory for any of these terms / phrases. ZTE’s Invalidity Contentions merely 

provide a bulleted list of terms and phrase which include some—but not all—of those listed above. 

Ex. A, ZTE’s Invalidity Contentions dated Jan. 6, 2021, at 54. ZTE introduced its bulleted list 

with the following conclusory and ambiguous statement: “[b]ased on ZTE’s present understanding 

of (and Plaintiff’s apparent interpretation of) the Asserted Claims, the Asserted Claims of the ’036

Patent below fail to satisfy the requirements of § 112, ¶ 2 because the claims fail to point out and 

distinctly claim the subject matter which the inventors regard as the alleged invention for the 

following terms[.]” That single, conclusory statement is literally all that ZTE opted to disclose in 

connection with its present indefiniteness objections. 

In the absence of any notice of the alleged basis for ZTE’s indefiniteness position, WSOU 

is prejudiced in its ability to address the dispute over these terms in its opening brief. ZTE should 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 27 of 30
23

not be allowed to lie behind the log on this dispute (injected by ZTE alone) and then force WSOU 

to relegate its entire rebuttal argument to its reply only. Because ZTE failed to provide any notice 

if its positions on indefiniteness, and in the absence of any expert testimony, the presumption 

stands unrebutted that the disputed phrase, when read in light of the intrinsic evidence, informs 

one of skill in the art at the time of the invention “about the scope of the invention with reasonable 

certainty.” Nautilus, 572 U.S. at 910−11. 

3. “end-node associated with the congestion condition” (claims 1, 12, 23, 24)

WSOU’s Position ZTE’s Position

Plain and ordinary meaning. Written description/enablement under 35 

U.S.C. § 112(a).

ZTE errs as a matter of law in asserting written description and enablement as issues 

properly raised during claim construction. They are not. As this Court instructed, “patent validity 

arguments like lack of enablement and lack of written description are not proper during claim 

construction proceedings.” USB Bridge Sols., LLC v. Buffalo Inc., 1-17-CV-001158-LY, 2020 

WL 1906898, at *5 (W.D. Tex. Apr. 17, 2020) (citing Evicam Int’l, Inc. v. Enf't Video, LLC, 2016 

WL 6470967, at *14 (E.D. Tex. Nov. 2, 2016) and Phillips, 415 F.3d at 1327 (“[W]e have certainly 

not endorsed a regime in which validity analysis is a regular component of claim construction.”)). 

As this Court recognized, the Eastern District of Texas has provided similar instruction. See, e.g., 

id.; Blue Calypso, Inc. v. Groupon, Inc., 93 F. Supp. 3d 575, 598 (E.D. Tex. 2015) (“Because claim 

construction proceedings generally do not address written description challenges, Defendants’

‘indefiniteness’ argument is hereby expressly rejected.”) (citing Phillips, 415 F.3d at 1327).

Even if it were proper here to address these written description and enablement disputes 

during claim construction, and it is not, WSOU is prejudiced in its ability to address these unripe 

disputes in its instant opening brief because (1) ZTE has failed to provide any notice as to why the 

above phrase allegedly fails to satisfy either the written description or enablement requirements 

and (2) ZTE—the party with the burden—has not offered what it contends would be the proper 

construction that allegedly would give rise to issues of written description or enablement. ZTE 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 28 of 30
24

should not be allowed to lie behind the log on these alleged yet unripe disputes and then force 

WSOU to relegate its entire rebuttal argument to its claim construction reply brief only. 

Dated: March 12, 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

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 29 of 30
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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 March 12, 

2021.

/s/ Ryan S. Loveless

Ryan S. Loveless 

Case 6:20-cv-00488-ADA Document 59 Filed 03/12/21 Page 30 of 30