IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC D/B/A 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v. 

HUAWEI TECHNOLOGIES USA

INC. ET AL.,

Defendants.

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CIVIL ACTION 6:20-cv-00537-ADA

CIVIL ACTION 6:20-cv-00539-ADA

PLAINTIFF’S REPLY CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 1 of 9
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Table of Contents

I. U.S. Patent No. 7,860,512 (Case No. 6:20-cv-00537-ADA)................................................. 1

1. “capacity” ..........................................................................................................................1

II. U.S. Patent No. 8,200,224 (Case No. 6:20-cv-00539-ADA)................................................. 3

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

quality from said first measurement report” (claim 1)......................................................3

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

when the program is run on the base station” (claim 15) .................................................4

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 2 of 9
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Table of Authorities

Cases

ACTV, INc. v. Walt Disney Co.,

346 F.3d 1082 (Fed. Cir. 2003)................................................................................................... 4

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

No. 2:17-CV-513-JRG, 2018 WL 4908169 (E.D. Tex. Oct. 10, 2018)...................................... 5

Allen Eng’g Corp. v. Bartell Indus., Inc.,

299 F.3d 1336 (Fed. Cir. 2002)................................................................................................... 2

Cole v. Kimberly-Clark Corp.,

102 F.3d 524 (Fed. Cir. 1996)..................................................................................................... 5

Digital Biometrics, Inc. v. Identix, Inc.,

149 F.3d 1335 (Fed. Cir. 1998)................................................................................................... 3

In re Rambus Inc.,

694 F.3d 42 (Fed. Cir. 2012)....................................................................................................... 4

Inline Plastics Corp. v. EasyPak, LLC,

799 F.3d 1364 (Fed. Cir. 2015)................................................................................................... 4

Ormco Corp. v. Align Tech., Inc.,

498 F.3d 1307 (Fed. Cir. 2007)................................................................................................... 2

Phillips v. AWH Corp.,

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

Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC,

824 F.3d 999 (Fed. Cir. 2016)..................................................................................................... 2

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I. U.S. Patent No. 7,860,512 (Case No. 6:20-cv-00537-ADA)

1. “capacity”

WSOU’s Position Huawei’s Position

Plain and ordinary meaning. “load”

Huawei fails to meet its burden to rebut the multiple legal presumptions—arising from the 

claim language itself—against construing the disputed “capacity” term as being interchangeable 

with the word “load” in terms of meaning and scope. Dkt. 43, 1-3. WSOU had observed, for 

example, that both claims 3 and 13 expressly differentiate “capacity” from “load” by separately 

referring to both terms in the same clauses (e.g., “at least one of a current cell load and a maximum 

radio capacity . . . , the current cell load and an available radio capacity”). WSOU had further 

observed that claim 1, from which claim 3 depends, “recites the ‘capacity’ term nine times in 

various contexts, and in none of those instances is ‘capacity’ expressly limited to ‘load.’” Id., 2. 

This independently gives rise to a presumption against Huawei’s construction. Id. 

Huawei argues it has rebutted each of the multiple presumptions arising under the doctrine 

of claim differentiation merely by its conclusory assertion that the specification uses “capacity”

and “load” interchangeably. Huawei mischaracterizes the specification, and the presumptions 

therefore stand unrebutted. For example, the specification expressly differentiates “capacity” and 

“load” by separately referring to both terms in the same clause of the same sentence—just like the 

claim language. ’512 patent at 10:3-4 (separately referring to both “the transport capacity and load 

situations”). The specification further differentiates “capacity” from “load” by stating “[t]he 

transport capacity can be indicated as the transport load.” Id. at 8:57-58. Use of the word “can” 

in this context, as opposed to must, independently refutes the untethered interpretation that 

“capacity” and “load” must be considered interchangeable. WSOU’s opening brief also identified 

other exemplary disclosures (likewise differentiating “capacity” and “load”) that closely track

claim language recited in claims 3 and 11, thereby further confirming the explicit differentiation 

in the claims should be given meaningful effect. Dkt. 43, 3 (citing ’512 patent at 10:8-11). Huawei 

overlooks these example instances expressly refuting its interchangeability interpretation.

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 4 of 9
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The presumptions are not rebutted by Huawei’s legally and factually flawed argument that 

its preferred word choice should control over that of the patentee allegedly because “load” (as 

opposed to “capacity”) is “the crux of the alleged invention of the ’512 Patent.” Dkt. 45, 2. 

Because “it is well settled that there is no legally recognizable or protected essential element, gist, 

or heart of the invention,” a party cannot substitute its word choice over that of the patentee merely 

by alleging (incorrectly) the proposed substitution would better capture the crux of the invention. 

Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1345 (Fed. Cir. 2002); see also Ormco 

Corp. v. Align Tech., Inc., 498 F.3d 1307, 1322 (Fed. Cir. 2007) (“This court . . . has rejected a 

claim construction process based on the ‘essence’ of an invention.”); accord, Ruckus Wireless, 

Inc. v. Innovative Wireless Sols., LLC, 824 F.3d 999, 1009-10 (Fed. Cir. 2016) (J. Stark, dissent).

Huawei misunderstands the doctrine of claim differentiation by suggesting its proposed 

construction does not “trigger” the doctrine. Dkt. 45, 4. The presumptions here automatically

arise under the doctrine because of what is recited in the claims, independent of the parties’ 

respective positions. Dkt. 43, 1-3 (discussing the doctrine). Because the presumptions arise under 

the doctrine as an operation of law due to the claim language itself, the burden lies with Huawei 

to rebut those presumptions. This Huawei failed to do. 

Huawei nevertheless attempts to argue the doctrine does not arise by the acknowledged

differentiation of claims 1 and 3. Dkt. 43, 3-4. Huawei argues that if the Court were to substitute 

“load” for every instance of “capacity” in claim 3, claim 3 would still be differentiated from claim 

1. Dkt. 45, 4. Huawei misses the point. As explained in WSOU’s opening brief, “[c]laim 1 recites 

the ‘capacity’ term nine times in various contexts, and in none of those instances is ‘capacity’

expressly limited to ‘load.’” Dkt. 43, 2. Claim 3, by contrast, expressly limits the “radio capacity 

information” introduced in claim 1 by adding limitations directed to “cell load” and transport 

load.” Id. This invokes the doctrine as to the “radio capacity term,” independent of any 

construction (if any) that is offered for “capacity.” Similarly, the doctrine is automatically invoked 

internally within claim 3 because multiple clauses recite both “capacity” and “load” separately. 

Id., 2-3. The very claim language that invokes the presumption cannot also rationally rebut it.

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 5 of 9
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II. U.S. Patent No. 8,200,224 (Case No. 6:20-cv-00539-ADA)

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

signal quality from said first measurement report” (claim 1)

WSOU’s Position Huawei’s Position

Plain and ordinary meaning. “selecting a single candidate base station using said evaluation 

of said signal quality from said first measurement report”

Huawei failed to establish that “the patentee . . . evince[d] a clear intent” to limit “a first” 

to “a single,” though only in the context of “a first candidate base station.” Dkt. 43, 4 (citation 

omitted). Accordingly, there is no “extremely rare” exception to the general rule here. Id. 

It remains undisputed that the term “a first measurement report” (also recited in claim 1) 

requires no construction and should not be construed to mean “a single measurement report.” Id.

Indeed, Huawei’s proposed claim construction simply restates “first measurement report” without 

any modification. Because “the same word appearing in the same claim should be interpreted 

consistently,” “first” cannot mean “first” in one instance and “single” in another. Digital 

Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1345 (Fed. Cir. 1998). Thus, Huawei’s 

inconsistent interpretation of “first” is independently fatal to its construction. Dkt. 45, 7.

Huawei incorrectly argues that use of both the singular and plural form of “base station(s)” 

in claim 1 supports Huawei’s construction. Id. However, the general rule is that the article “a” 

means “one or more,” regardless of whether a plurality is expressly recited. Dkt. 43, 4 (citation 

omitted). Moreover, claim 1 recites the plural form of base station even when referring to scope 

that expressly encompasses the singular. For example, claim 1 recites “said first measurement 

report containing an evaluation of signal quality from at least one candidate base station of said 

plurality of base stations.” ’224 patent at 9:8-11. Here, the “candidate base station” clearly 

encompasses at least the singular. Elsewhere, claim 1 refers to this same limitation by reciting 

“selecting a set of candidate base stations including at least some of said candidate base stations

identified in said first measurement report.” Id. at 9:17-19. Thus, recitation of the plural or 

singular form of “base station(s)” in claim 1 does not evince a clear intent to so limit the term. 

Huawei has not supported its construction by pointing to instances in the specification 

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 6 of 9
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where verbs are used in the singular form (as opposed to the plural) following descriptions of “a 

first candidate base station.” Dkt. 45, 7-8. That the specification applies correct grammar

following recitation of “a first candidate base station” does not somehow give rise to an “extremely 

rare” exception by evincing a clear intent to limit “a first candidate base station” to “a single

candidate base station” only. Huawei also overlooks a significant counterexample, where the 

specification uses the couplet “single first” in referring to a “a single first handover 

acknowledgement message.” ’224 patent, 7:1. The pairing of “single first” in the specification 

confirms that when “first” is intended to refer to a “single” only, the patentee said so.

Huawei has failed to meet the exacting burden to prove prosecution history disclaimer. 

Dkt. 45, 8. As Huawei concedes, the cited portion of the prosecution concerns a reference “raised 

by the examiner with regards to the ‘second handover’ aspect of then pending claim 1”—i.e., not

the claim language in question. Id. Prosecution disclaimer does not arise from statements 

overcoming a rejection on bases other than the limitation disputed at Markman. See, e.g., Inline 

Plastics Corp. v. EasyPak, LLC, 799 F.3d 1364, 1366 (Fed. Cir. 2015); In re Rambus Inc., 694 

F.3d 42, 48, (Fed. Cir. 2012); ACTV, INc. v. Walt Disney Co., 346 F.3d 1082, 1092 (Fed. Cir. 

2003). Moreover, the Federal Circuit has recognized (including in Phillips) that due to the evolving 

nature of claims during patent prosecution, the prosecution history may have limited usefulness. 

Phillips v. AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir. 2005) (en banc).

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

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

WSOU’s Position Huawei’s Position

Plain and ordinary meaning and does not

invoke 35 U.S.C. § 112, ¶6. 

If the court finds the term invokes § 112, ¶6, 

however, then:

Function: executable program causing a base 

station to perform the method of claim 1 when 

the program is run on the base station.

Subject to 35 U.S.C. § 112, ¶6.

Function: causing a base station to perform 

the method when the program is run on the 

base station.

Structure: the Fig. 1 flowchart 100 of a 

handover method in a base station of a mobile 

communication system, and equivalents 

thereof.

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 7 of 9
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Structure: executable program causing a base 

station to perform the method of flowchart 

100; and equivalents thereof.

Huawei fails to dispute a fundamental reason why its proposed construction fails at the first 

stage of the analysis—i.e., on the issue of whether the term invokes § 112, ¶ 6. Dkt. 43, 5-7. The 

Federal Circuit has articulated the test in a negative as follows: “[t]o invoke [35 U.S.C § 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-CV513-JRG, 2018 WL 4908169, at *18 (E.D. Tex. Oct. 10, 2018) (collecting cases, including Cole). 

Huawei has essentially conceded that claim 15 recites definite corresponding structure. 

Huawei’s identification of alleged functional and structural language (as reproduced in the table 

above) significantly overlap. Indeed, the alleged functional language recites significantly more 

structure than the alleged structural language. This is because the method of claim 1 (which 

Huawei identifies as functional language) recites more detail than flowchart 100 of Figure 1 (which 

Huawei identifies as corresponding structure). Huawei’s proposed means-plus-function 

construction arguably expands claim scope by proposing to simplify the structural method 

requirement to the more generalized representation of flowchart 100. In view of what Huawei 

identifies as corresponding structure, it cannot reasonably argue the claim language itself does not 

recite any corresponding structure. It follows that Huawei’s own admissions defeat an 

interpretation that the claim language invokes § 112, ¶ 6.

For the sake of brevity, and due to page-limit constraints, WSOU defers to its other relevant 

points raised in its opening brief. Dkt. 43, 5-7.

In the unlikely event the Court finds the disputed term invokes means-plus-function 

construction under § 112, ¶ 6, WSOU has simplified its construction in the table above, if only to 

underscore that the claim language itself recites sufficiently definite structure and that there is no 

rational basis to bifurcate structure and function here (under a means-plus-function construction).

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 8 of 9
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Dated: March 19, 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 March 19, 

2021.

/s/ Ryan S. Loveless

Ryan S. Loveless 

Case 6:20-cv-00537-ADA Document 46 Filed 03/19/21 Page 9 of 9