EXHIBIT 6

Case 6:20-cv-00534-ADA Document 47-4 Filed 03/05/21 Page 1 of 47
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 CO., LTD. 

AND HUAWEI TECHNOLOGIES USA 

INC.,

Defendants,

Case No. 2:18-cv-00533-ADA

Case No. 2:18-cv-00535-ADA

Case No. 2:18-cv-00538-ADA

JURY TRIAL DEMANDED

DECLARATION OF TAL LAVIAN PH.D.

REGARDING CLAIM CONSTRUCTION

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 1

I. INTRODUCTION

1. My name is Tal Lavian, and I have been retained as a technical expert by counsel 

for Defendants Huawei Technologies Co., Ltd. and Huawei Technologies USA Inc. (collectively, 

“Huawei” or “Defendants”) to address certain issues concerning U.S. Patent No. 6,882,627 (“’627 

Patent”), U.S. Patent No. 7,508,755 (“’755 Patent”), and U.S. Patent No. 7,872,973 (the “’973 

Patent”) that have been asserted against Huawei by WSOU Investments, LLC D/B/A Brazos 

Licensing and Development (“WSOU” or “Plaintiff”). Unless otherwise stated, the matters 

contained in this Declaration are of my own personal knowledge and, if called as a witness, I could 

and would testify competently and truthfully with regard to the matters set forth herein.

2. My opinions are based on my years of education, research and experience, as well 

as my investigation and study of relevant materials. A list of materials considered is included in 

Exhibit A to my declaration.

3. I may rely upon these materials, my knowledge and experience, and/or additional 

materials in forming any necessary opinions. Further, I may also consider additional documents 

and information to rebut arguments raised by Plaintiff. I reserve any right that I may have to 

supplement this declaration if further information becomes available or if I am asked to consider 

additional information. Furthermore, I reserve any right that I may have to consider and comment 

on any additional expert statements or testimony of Plaintiff’s experts, if any, in this matter.

4. My analysis of the materials produced in this investigation is ongoing and I will 

continue to review any new material as it is provided. This declaration represents only those 

opinions I have formed to date. I reserve the right to revise, supplement, and/or amend my opinions 

stated herein based on new information and on my continuing analysis of the materials already 

provided.

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 2

5. I am being compensated at my usual consulting rate of $ 400 per hour for my time 

spent working on issues in this case. My compensation does not depend upon the outcome of this 

matter or the opinions I express. 

II. QUALIFICATIONS

6. I am qualified by education, knowledge, training, and experience to testify as an 

expert in the field of telecommunications and network communications. Attached as Exhibit B to 

this Declaration is a copy of my curriculum vitae detailing my education and experience. 

Additionally, the following overview of my background pertains to my qualifications for providing 

expert testimony in this matter.

7. As a scientist, educator, and technologist, I have more than 30 years of experience 

working with and studying network communications, computer networking, telecommunications, 

and software.

8. I am currently a named inventor or co-inventor on more than 120 issued U.S. 

patents and patent applications, almost all of them are in the area of telecommunications and 

network communications that are related to the subject matter in the ’627, ’755 and ’973 Patents.

Examples of some of my inventions are the following patents: US7,860,999, US6,772,205, 

US7,433,941, CA2,358,525, EP1,142,213, US6,175,868, US7,710,871, and US7,359,993. A list 

of granted patents and patent applications is included in my curriculum vitae. 

9. For these reasons and because of my technical experience and training as outlined 

below, I believe I am qualified to offer technical opinions regarding the ’973, ’627, and ’755 

Patents. 

10. Specifically, I received a Ph.D. in Computer Science, specializing in networking 

and communications, from the University of California at Berkeley in 2006 and obtained a 

Master’s of Science (“M.Sc.”) degree in Electrical Engineering from Tel Aviv University, Israel, 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 3

in 1996. In 1987, I obtained a Bachelor of Science (“B.Sc.”) in Mathematics and Computer 

Science, also from Tel Aviv University. 

11. I was with the University of California at Berkeley for almost 20 years, where I 

served as Berkeley Industry Fellow, Lecturer, Visiting Scientist, Ph.D. Candidate, and Nortel’s 

Scientist Liaison. I was employed by the University of California at Berkeley and was appointed 

as a lecturer and Industry Fellow in the Center of Entrepreneurship and Technology (“CET”) as 

part of UC Berkeley College of Engineering. I have taught several classes on wireless devices and 

smartphones. Some positions and projects were held concurrently, while others were held 

sequentially. My research had been focused on network services, communication infrastructure, 

and telecommunication systems.

12. From 2007 to the present, I have served as a Principal Scientist at my company,

TelecommNet Consulting Inc., where I develop network communication technologies and provide 

research and consulting in advanced technologies, mainly in computer networking and Internet 

technologies. In addition, I have served as a Co-Founder and Chief Technology Officer (CTO) of 

VisuMenu, Inc. from 2010 to the present, where I design and develop architecture of visual IVR 

technologies for smartphones and wireless mobile devices in the area of network communications.

13. During 2018–2019, I served as a Principal Investigator and a CTO for CRadar.Ai, 

a company that develops clean wireless radio signal generators for wireless communications and 

radar systems. In addition, I have worked on wireless and cellular systems and worked on various 

projects involving the transmission and streaming of digital media content.

14. In 2008, I served as a Communications Consultant at IXIA (Ixiacom.com , now a 

division of Keysight Technologies), where I researched and developed advanced network 

communications testing technologies for ensuring wireless service quality, including developing 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 4

testing for IP routing and switching devices and broadband access equipment, and providing traffic 

generation and emulation for the full range of protocols, such as routing, Multi-Protocol Label 

Switching (“MPLS”), Layer 2 and Layer 3 Virtual Private Networks (“VPN”), carrier Ethernet, 

broadband access, and data center bridging. 

15. For eleven years, from 1996 to 2007, I worked for Bay Networks and Nortel 

Networks. Bay Networks was in the business of making and selling computer network hardware 

and software. Nortel Networks acquired Bay Networks in 1998, and I continued to work at Nortel 

after the acquisition. During my tenure at Bay and Nortel, I held positions including Principal 

Scientist, Principal Architect, Principal Engineer, Senior Software Engineer, and I led the 

development and research involving a number of networking technologies. I led the efforts of 

Java technologies at Bay Networks and Nortel Networks. In addition, from 1999–2001, I served 

as the President of the Silicon Valley Java User Group with over 800 active members from many 

companies in Silicon Valley.

16. Prior to that, from 1994 to 1995, I worked as a software engineer and team leader 

for Aptel Communications, designing and developing wireless technologies, mobile wireless 

devices and network software products.

17. From 1990 to 1993, I worked as a software engineer and team leader at Scitex Ltd., 

where I developed system and network communications tools (mostly in C and C++). 

18. From 1987 to 1990, I worked as a software engineer for Shalev Inc. designing and 

developing real-time software and algorithms. 

19. I have extensive experience in communications technologies including wireless 

technologies, routing and switching architectures and protocols, including MPLS Networks, Layer 

2 and Layer 3 VPN, and Pseudowire technologies. Much of my work for Nortel Networks 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 5

(mentioned above) involved the research and development of these technologies. For example, I 

wrote software for Bay Networks and Nortel Networks switches and routers, developed network 

technologies for the Accelar 8600 family of switches and routers, the OPTera 3500 SONET 

switches, the OPTera 5000 DWDM family, and the Alteon L4-7 switching product family. I wrote 

software for Java-based device management, including a software interface for device 

management and network management in the Accelar routing switch family’s network 

management system. I have also worked on enterprise Wi-Fi solutions, wireless mobility 

management, and wireless infrastructure. 

20. I am a member of a number of professional affiliations, including the Association 

of Computing Machinery (“ACM”) and the Institute of Electrical and Electronics Engineers 

(“IEEE”) (senior member). I am also certified (2012) under the IEEE WCET (Wireless 

Communications Engineering Technologies) Program, which was specifically designed by the 

IEEE Communications Society (ComSoc) to address the worldwide wireless industry’s growing 

and ever-evolving need for qualified communications professionals. Also, I have co-authored 

more than 25 scientific publications, journal articles, and peer-reviewed papers. The titles of all 

publications I have authored within the preceding ten years appear in my curriculum vitae.

21. A complete list of cases in which I have testified at trial, hearing, or by deposition 

within the preceding four years is provided in Exhibit C, which is attached to my declaration.

22. Based on my education, training, knowledge, expertise, and experience, I believe I 

am qualified to render the opinions set forth here.

III. LEVEL OF ORDINARY SKILL IN THE ART

23. I have been asked to offer my opinion regarding the level of ordinary skill in the art 

with respect to the ’627, ’755, and ’973 Patents. 

24. I understand that an assessment of claims of these patents should be undertaken 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 6

from the perspective of a person of ordinary skill in the art as of the earliest claimed priority date. 

I have also been advised that to determine the appropriate level of a person having ordinary skill 

in the art, the following factors may be considered: (1) the types of problems encountered by those 

working in the field and prior art solutions thereto; (2) the sophistication of the technology in 

question, and the rapidity with which innovations occur in the field; (3) the educational level of 

active workers in the field; and (4) the educational level of the inventor. The ’627 patent is 

generally directed to techniques for facilitating the selection of multiple paths through a network 

represented by a network topology which takes into account shared risk which may exist between 

network resources. See ’627 Patent, Abstract, 2:5-9. The ’627 patent summarizes certain technical 

problems in the field that existed at the time, over two decades ago. See ’627 Patent, 1:13-2:2.

25. The ’755 Patent is generally directed to methods and devices in networking for rerouting traffic traveling in both directions from a bi-directional label switched path (LSP) to an 

alternate path using the same network elements. See ’755 Patent, 1:47-49. The ’755 Patent 

summarizes certain technical problems in the field that existed at the time, nearly two decades ago. 

At the time of the invention, a failure in a network device or link occurs downstream of a source 

network device, so called existing MPLS Fast Re-routing techniques are employed to bypass the 

failure. See ’755 Patent, 1:15-17.

26. The ’973 Patent generally relates to the field of network devices, and more 

specifically, to a method and system for incorporating a queuing device in a network device in a 

communications network. See ’973 Patent, 1:7-11.

27. In my opinion, with regard to the ’627, ’755, and ’973 Patent, a person of ordinary

skill in the art would have had at least a Master’s degree in computer science, computer 

engineering, electrical engineering, or a related field, with 3-5 or more years of experience in 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 7

networking systems. This description is approximate, and a higher level of education or skill might 

make up for less experience, and vice-versa.

IV. SCOPE OF OPINIONS

28. I have been asked to provide certain opinions regarding claim construction. I have 

been asked to provide my opinions regarding the meaning of certain disputed claim terms as 

understood by one of ordinary skill at the time of the invention. My opinions are based on my 

understanding of what the disputed claim terms and proposed construction were, and what the 

evidence relied upon by the parties was, as of the time that I executed this Declaration.

V. LEGAL STANDARDS RELIED UPON

29. Certain legal principles that relate to my opinions have been explained to me.

30. I understand that ultimately the Court will determine the matter of how specific 

terms shall be construed. The intent of this Declaration is to help inform the Court how a person 

of ordinary skill in the art (“POSITA”) would understand the meaning of certain disputed claim 

terms in the context of the ’627, ’755, and ’973 Patents.

31. I understand that in district court litigation patent claims are generally given the 

meaning that the terms would have to a POSITA in question as of the earliest claimed priority 

date. It is my understanding that a patentee can decide to act as her own lexicographer by 

explicitly defining terms to have specific meaning within the bounds of the patent specification. 

32. It is my understanding that statements made to the patent office by the patentee or 

their legal representative during prosecution can serve to illuminate, or possibly narrow the proper 

scope of claim terms, and such statements must be considered when one searches for the 

appropriate claim construction. This is sometimes referred to as disclaimer. 

33. I have endeavored, to the best of my ability, to take into account all of these factors 

during the process of my analysis.

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 8

34. I understand that a claim is indefinite if, when read in light of the specification and 

its prosecution history, the claim fails to inform, with reasonable certainty, a POSITA about the 

scope of the claimed invention.

35. I understand that “means-plus-function” claiming occurs when an element in a

claim is written as a means or step for performing a specified function without the recital of 

structure, material, or acts in support thereof. I understand that in such a case, the claim shall be 

construed to cover the corresponding structure, material, or acts described in the specification that 

are clearly linked to the claimed function, and equivalents thereof. 

36. I also understand that where the claim term fails to recite sufficiently definite

structure or else recites a function without reciting sufficient structure for performing that function, 

the claim term is a means-plus-function term, whether or not the word “means” is used.

37. I further understand that, once it is determined that a claim term is a means-plusfunction term, the court applies a two-step analysis. I understand that the first step requires 

identifying the function, staying true to the claim language and the limitations expressly recited by 

the claims. I understand that the second step is identifying the structure in the patent specification 

that is clearly linked to and performs the claimed function. 

38. I understand that, for a computer-implemented invention claimed with a meansplus-function claim term, the structure disclosed in the specification must generally be more than

simply a general-purpose computer or microprocessor in order to avoid purely functional claiming. 

I further understand that a computer-implemented means-plus-function term is limited to the 

corresponding structure disclosed in the specification and equivalents thereof, and the 

corresponding structure generally must include an algorithm. I further understand that the 

requirement to disclose an algorithm may be met in several ways, and is not limited to a formula 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 9

of mathematical symbols. I understand that, for example, the steps, formula, or procedures to be

performed by the computer might be expressed textually, orshown in a flow chart.

39. I understand that whether or not the specification adequately sets forth and clearly 

links structure corresponding to the claimed function necessitates consideration of that disclosure 

from the viewpoint of a POSITA. I understand that if the specification fails to disclose and clearly 

link a structure sufficient to perform the claimed function, the means-plus-function term, and the 

claim in which it appears, is indefinite.

VI. BACKGROUND

A. Overview of the ’627 Patent

40. The ’627 Patent generally describes processes that “facilitate the selection of 

multiple paths through a network represented by a network topology which take into account 

shared risk which may exist between network resources.” ’627 Patent, 2:6-9. 

41. The ’627 Patent seeks to uniquely identify “network resources which share 

common risks . . . referred to herein as ‘shared risk groups’ or SRGs.” ’627 Patent, 1:63-64. The 

network resources generally “include nodes and links” where “[t]he shared risk groups might 

include groups of nodes and/or groups of links.” ’627 Patent, 2:28-30. SRGs can include network 

links that “share the same fiber” or “a single conduit.” ’627 Patent, 4:33-35.

42. The ’627 Patent states that the invention “identifies a first path through the network 

topology . . . where the first path comprises a first sequence of network resources,” and then acts 

to “determine if any of the at least one shared risk group includes any of the first sequence of 

network resources.” ’627 Patent, at 2:13-18. Within the context of the ’627 Patent, the claimed 

determination is important because it discourages the use of network resources in any shared risk 

group.” ’627 Patent, Abstract.

43. The ’627 Patent then proposes performing topology transformations that 

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“discourages the use of network resources” by backup paths when those resources are in an SRG 

with resources in the primary path. ’627 Patent, 1:59-2:25; and 6:49-61. The ’627 Patent describes 

such topology transformations as “assigning” an additional cost (Ls) to links and transforming 

“[e]ach node N 120 to be transformed [by] split[ing] into two nodes N’ 122, N’’ 124.” ’627 Patent, 

at 6:62-7:6; 7:11-12; and FIGS. 4A and 4B, reproduced below.

B. Overview of the ’755 Patent

44. The ’755 Patent generally relates to the re-routing of traffic along label switched 

paths in both forward and backwards directions when there is a failure along the primary path. 

’755 Patent, Abstract. The patent explains that “[u]pon the detection of a failure along a bidirectional label switched path, traffic in both forward and backward directions is re-routed to the 

same alternate path. ’755 Patent, Abstract.

45. More specifically, the ’755 Patent relates to systems and techniques for responding 

to failure “at a network device or link in a Multi-Protocol Label Switched (MPLS) network . . . 

using so-called virtual connections referred to as ‘label switched paths’ (LSPs).” ’755 Patent, 1:7-

11. The background section explains that “[e]xisting MPLS Fast Re-Routing techniques are 

effective in re-routing MPLS labeled traffic in an LSP acting independently relative to other 

LSPs.” ’755 Patent, 1:19-20. But that “when LSPs are bundled together to operate in two 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 11

directions . . . MPLS Fast Re-routing does not perform well.” ’755 Patent, 22-25. 

46. The ’755 Patent states that existing routing techniques which try to re-route traffic 

from a forward LSP to a predetermined alternate path are often fail because “there is no 

predetermined alternate path for a backward LSP in a bi-directional LSP.” ’755 Patent, 1:27-30. 

And that “once a failure occurs no traffic is allowed to flow in the backward direction. As a result, 

the bi-directional LSP can no longer operate as a bid-directional LSP; it now operates as a unidirectional LSP.” ’755 Patent, 1:30-33. The ’755 Patent further explains that existing routing 

techniques are deficient even when the “forward and backward LSPs . . . have alternate LSPs” 

because traditional techniques will “create[] two separate alternate paths (i.e., using different 

network elements) one for each direction, to overcome failure.” ’755 Patent, 1:34-38. According 

to the ’755 Patent, “[c]reating different alternate paths for the forward and backward LSPs of a bidirectional LSP makes it difficult to ensure the same quality of service.” ’755 Patent, 41-43.

47. The inventors provided that “[t]he present invention [of the ’755 Patent] re-routes 

traffic traveling in both directions from a bi-directional LSP to an alternate path using the same 

network elements.” ’755 Patent, 1:48-50. The invention of the ’755 Patent is depicted in Figure 

1 where the network 105 has a failure point “X” between network devices 120 and 130. ’755 

Patent, 2:11-13. The patent purports to solve this problem by transmitting a switch over message 

from originating device 120 to the merging network device 140. ’755 Patent, 2:14-19. “Upon 

receiving the message, device 140 creates an alternate path in the backward direction using the 

same network elements.” ’755 Patent, 2:19-21. “Once the originating network device 120 and the 

merging network device 140 have determined the alternate path, they perform a switch over so 

that, in this example, both follow the same alternate path that passes through network device 170 

as shown in FIG.1.” ’755 Patent, 2:22-32. Figure 1 is shown below.

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C. Overview of the ’973 Patent

48. The ’973 Patent generally relates to the field of network devices, and more 

specifically, to a method and system for incorporating a queuing device in a network device in a 

communications network. See ’973 Patent, 1:8-11. I understand that the earliest possible priority 

date of the ’973 Patent is March 17, 2006. 

49. A stated goal of the invention of the ’973 Patent is to improve the performance of 

a network device, such as a router, switch, or gateway through the addition of the queuing device. 

See ’973 Patent, 2:54-62. As shown below, a queuing device 140 is coupled to an upstream device 

120 and a downstream device 130 in a network device 110. See ’973 Patent, Fig. 1 and 4:17-21. 

Also, the network device 110 includes a general-purpose processor 160, which controls the overall 

operation of the network device 110. See ’973 Patent, Fig. 1 (as reproduced, and annotated below

as disclosed in 6:26-30) and 4:26-28. 

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50. To prevent packets from being discarded to improve the overall performance of a 

network device 110, an upstream device 120 functions as a traffic manager to adjust a rate of 

packets to a queuing device 140. In particular, the ’973 Patent proposed two ways to do so, 

including (1) having the upstream device 120 to enforce a command to reduce a rate of the packets, 

and/or (2) enabling the upstream device 120 to control a rate of the packets by determining whether 

to reduce or increase the rate based on the received depth of the queue in a queuing device. See

’973 Patent, 5:55-6:15, 7:7-11 and 17-21. 

51. As to (1), an upstream device 120 receives a message instructing it to “slow down 

or stop sending traffic destined to the congested queue or queues in the queuing device 140.” ’973 

Patent, 5:58-60. As to (2), an upstream device 120 receives another message “reporting the depth 

of the queue to the upstream device 120 to thereby enable the upstream device 120 to determine 

whether to reduce or increase the rate at which it sends packets to the queuing device 140.” ’973 

Patent, 7:17-21. 

52. Further, the upstream device 120 may “forward or relay a message from the 

queuing device 140 . . . to an upstream network device . . . to thereby control the rate at which the 

upstream device 120 receives packets from the upstream network device.” ’973 Patent, 6:26-32. 

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The upstream network device is added to the original Fig. 1 of the ’973 Patent as shown above. 

The upstream network device, which is similar to the network device 110, appears to be external 

to the network device 110. See ’973 Patent, 6:30. 

53. Fig. 3 illustrate the functionalities as claimed in the ’973 Patent as reproduced 

below. See ’973 Patent, Fig. 3, 3:49-53 (“FIG. 3 is a flow chart illustrating operations of software 

modules within the memory of a data processing system for incorporating a queuing device as a 

lossless processing stage in a network device”) and 6:61-67 (“The above described method may 

be summarized with the aid of a flowchart. FIG. 3, as shown below is a flow chart illustrating 

operations 400 of software modules 331.”) In addition to the information about software modules 

being within the memory, the specification appears to have no further description about the 

structure or algorithms for those software modules. 

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VII. DISPUTED CLAIM TERMS 

A. Terms for the ’627 Patent

1. “second code means adapted to, for at least one shared risk group, 

determine if any of the at least one shared risk group includes any of 

the first sequence of network resources” (Claim 29)

“means adapted to, for at least one shared risk group, determine 

if any of the at least one shared risk group includes any of the 

first sequence of network resources” (Claim 30)

54. I understand that the parties agree that the terms identified above are means-plusfunction terms having the function of “determine if any of the at least one shared risk group 

includes any of the first sequence of network resources.” I further understand that the parties 

dispute whether the terms are indefinite for failing to disclose corresponding structure. In my 

opinion, the ’627 Patent does not disclose any corresponding structure for performing this function. 

55. Claim 29 of the ’627 Patent requires a “processing platform-readable medium 

having code means stored thereon” which comprises a “second code means adapted to, for at least 

one shared risk group, determine if any of the at least one shared risk group includes any of the 

first sequence of network resources.” Similarly, claim 30 requires a network management platform 

that comprises “means adapted to, for at least one shared risk group, determine if any of the at least 

one shared risk group includes any of the first sequence of network resources.” 

56. I understand that there is a dispute between the parties as to whether the ’627 Patent 

links the claimed function above to the corresponding structure in the specification. In my opinion, 

it does not.

57. In particular, the specification does not clearly link any components or algorithms 

to the function of determining if any of the at least one shared risk group includes any of the first 

sequence of network resources. I understand that WSOU’s proposed corresponding structure is 

“processing platform readable medium, and equivalents thereof” for claim 29, and “a network 

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management platform, and equivalents thereof” for claim 30. 

58. In my opinion, there is no link between these components and the function of 

determining whether at least one shared risk group includes any of the first sequence of network 

resources. Indeed, the claim language itself in claims 29 and 30 provide that the “processing 

platform-readable medium” and the “network management platform” themselves must “comprise” 

structure that performs the claimed function. ’627 Patent, 12:37-50, and 12:61-13:6. 

59. In my opinion, a POSITA would not understand that the claimed “processing 

platform-readable medium” and “network management platform” would themselves comprise a 

processing platform-readable medium and network management platform as asserted by WSOU.

60. In addition, the only reference to a “processing platform-readable medium” that is 

outside of the claims of the ’627 Patent states that “[a]nother broad aspect of the invention provides 

a processing platform readable medium having instructions stored thereon for allowing a 

processing platform, specific or nonspecific, to implement any of the methods described herein.” 

’627 Patent, 3:19-23. In my opinion, a POSITA would not understand this reference to a 

processing platform-readable medium to be linked to the claimed function.

61. Similarly, the only reference to a “network management platform” that is outside 

of the claims of the ’627 Patent states that “[a]nother broad aspect of the invention provides a 

network management platform adapted to implement any of the methods described herein. This 

would include any suitable combination of hardware and/or software.” ’627 Patent, 3:24-27. In 

my opinion, a POSITA would not understand this reference to a network management platform to 

be linked to the claimed function.

62. I also believe that WSOU’s identification of purported algorithms fails to connect 

the claimed function to any sort of algorithm in the specification of the ’627 Patent. WSOU 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 17

identifies seven portions of the specification and three (3) different figures that purportedly 

disclose algorithms. 

63. WSOU’s first citation is to 2:13-54 of the ’627 Patent’s specification. This portion 

of the specification does not disclose an algorithm for determining if any of the at least one shared 

risk group includes any of the first sequence of network resources. Instead, it discusses the general 

functionality of the claimed invention. While it does recite the functional claim language at issue, 

it does not link any structure or set of steps to the function of determining if any of the at least one 

shared risk group includes any of the first sequence of network resources. 

64. The disclosure merely recites that “[a] first broad aspect of the invention provides 

a method of selecting multiple paths through a network represented by a network topology 

representing an interconnected set of resources. The method involves identifying a first path 

through the network topology from a source node to a destination node, the first path comprising 

a first sequence of network resources; for at least one shared risk group, determining if any of the 

at least one shared risk group includes any of the first sequence of network resources . . . .” ’627 

Patent, 2:10-18. The remaining portion of the citation goes on to discuss other functions of the 

invention without providing an algorithm, structure or set of steps to the function of determining 

if any of the at least one shared risk group includes any of the first sequence of network resources.

65. The second purported algorithm is disclosed at 3:54-4:15. This excerpt, in my 

opinion, is again not a disclosure of an algorithm for determining if any of the at least one shared 

risk group includes any of the first sequence of network resources. Instead, the citation discusses 

the composition of different shared risk groups but there is no identification of what the “first 

sequence of network resource is” or how to determine if the at least one shared risk group includes 

any of the first sequence of network resources.

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 18

66. The third purported algorithm is disclosed at 4:45-5:33. This except, in my opinion, 

does not disclose an algorithm for determining if any of the at least one shared risk group includes 

any of the first sequence of network resources. This citation generally discusses certain goals and 

objectives of SRG-constrained routing but does not disclose a specific algorithm for performing 

the claimed function.

67. The fourth purported algorithm is disclosed at 6:23-37. This except, in my opinion, 

does not disclose an algorithm for determining if any of the at least one shared risk group includes 

any of the first sequence of network resources. This citation merely shows three shared risk groups 

based on the network illustrated in Figure 3B.

68. The fifth purported algorithm is disclosed at 6:52-7:52. The title of this portion of 

the specification is “Create a Transformed Topology in which the Resources of Each Shared Risk 

Group Including a Resource in the Primary Path are Transformed.” ’627 Patent, 6:49-51. This 

passages goes on to discuss how a topology transformation of links and nodes is purportedly 

performed in accordance with the alleged invention. There is no discussion regarding how a 

determination is made as to whether any of the at least one shared risk group includes any of the 

first sequence of network resources.

69. The sixth purported algorithm is disclosed at 9:18-23. This except, in my opinion, 

does not disclose an algorithm for determining if any of the at least one shared risk group includes 

any of the first sequence of network resources. This citation discusses an example of a network 

topology with several shared risk groups but does not disclose a specific algorithm for performing 

the claimed function. 

70. The seventh purported algorithm is disclosed at 12:46-50. This except, in my 

opinion, does not disclose an algorithm for determining if any of the at least one shared risk group 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 19

includes any of the first sequence of network resources. This citation is to the claim language of 

claim 29 and the disputed limitation. This citation does not disclose a specific algorithm for 

performing the claimed function. 

71. The eighth and ninth purported algorithms are disclosed at Figures 3A and 3B. 

However, in my opinion, these figures do not disclose an algorithm for determining if any of the 

at least one shared risk group includes any of the first sequence of network resources. Instead, the 

figures disclose “network topologies illustrating use of the method of Fig. 2 for shared risk group 

constraint based routing.” ’627 Patent, at 3:37-39. When Figures 3A and 3B are analyzed it is my 

opinion that Figure 3A shows an exemplary network topology with costs assigned to each link, 

and that Figure 3B shows three shared risk groups. In my opinion there is no discussion or detail 

regarding what the “first sequence of network resources” is or how one of skill in the art would 

determine if any of the at least one shared risk group includes any of the first sequence of network 

resources. Thus, it is my opinion that Figures 3A and 3B provide no structural link between any 

algorithm or component that can perform the function of determining if any of the at least one 

shared risk group includes any of the first sequence of network resources

72. The tenth purported algorithm is disclosed at Figure 6B. However, in my opinion, 

these figures to not disclose an algorithm for determining if any of the at least one shared risk 

group includes any of the first sequence of network resources. Instead, these figures are exemplary 

“network topologies illustrating the use of the method of FIG.2” ’627 Patent, 3:47-48. When 

Figure 6B is analyzed it is my opinion that it shows an exemplary network topology with labeled 

costs for each link and identifies 4 shared risk groups. In my opinion there is no discussion or 

detail regarding what the “first sequence of network resources” is or how one of skill in the art 

would determine if any of the at least one shared risk group includes any of the first sequence of 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 20

network resources. Thus, it is my opinion that Figure 6B provides no structural link between any 

algorithm or component that can perform the function of determining if any of the at least one 

shared risk group includes any of the first sequence of network resources.

73. Accordingly, in my opinion, the ’627 Patent does not clearly link any corresponding 

structure to the function of “determining if any of the at least one shared risk group includes any 

of the first sequence of network resources.” As such, it is my opinion, that claims 29 and 30 of 

the ’627 Patent are indefinite. 

B. Terms for the ’755 Patent

1. “means for re-routing traffic traveling along the bi-directional LSP in 

the backwards direction to the alternate path in the backwards 

direction based on the switch over message” (claim 8)

“means for re-routing traffic traveling along a bi-directional LSP in a 

backwards direction to an alternate path in the backwards direction 

based on the switch over message” (claim 23)

“means for re-routing traffic traveling along the bi-directional LSP in 

a backwards direction to the same alternate path in the backwards 

direction based on the switch over message” (claim 25)

74. I understand that the parties agree that the terms identified above are means-plusfunction terms having the functions listed above (and in claims 8, 23, and 25, respectively). I 

further understand that the parties dispute whether the terms are indefinite for failing to disclose 

corresponding structure. In my opinion, the ’755 Patent does not disclose any corresponding 

structure for performing the claimed functions. 

75. Claim 8 requires a “system for re-routing traffic” that comprises a “merging 

network device” which further comprises “means for re-routing traffic traveling along the bidirectional LSP in the backwards direction to the alternate path in the backwards direction based 

on the switch over message.” Similarly, claim 23 requires a “merging network device” comprising 

“means for re-routing traffic traveling along a bi-directional LSP in a backwards direction to an 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 21

alternate path in the backwards direction based on the switch over message.” And, likewise, claim 

25 requires a “system for re-routing traffic” comprising “means for re-routing traffic traveling 

along the bi-directional LSP in a backwards direction to the same alternate path in the backwards 

direction based on the switch over message.” I understand that there is a dispute regarding whether 

the ’755 Patent links the claimed functions to corresponding structure in the specification. In my 

opinion, it does not.

76. In particular, the specification does not clearly link any components or algorithms 

linked to the three identified functions. I understand that for each function Plaintiff’s proposed 

structure is “merging network device, and equivalents thereof” and “if required” the algorithms 

contained in “2:7-32, 2:43-60, 3:13-36, Figs. 1, 2, 3.” 

77. In my opinion, there is no understandable link between the merging network device 

itself and the three identified functions. Indeed, the claim language itself in claims 8 and 23 

provide that the “merging network device” must comprise structure that performs the claimed 

function. ’755 Patent, 4:44-49, 5:20-27. In my opinion a POSITA would not understand that the 

claimed “merging network device” would itself comprise a merging network device as asserted by 

WSOU.

78. In addition, with respect to claim 25, I understand that the structure disclosed in the 

specification needs to be more than simply a general purpose computer or microprocessor. A 

POSITA would understand the disclosure of a “merging network device” within the context of the 

’755 Patent to be a general purpose computer or general device. Therefore, the general reference 

to a “merging network device” is not sufficient enough to serve as corresponding structure.

79. In addition, while the merging network device is mentioned in the specification of 

the ’755 Patent, it is consistently done so through reference to functions of the merging network 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 22

device. For instance, the specification provides that merging network device 140 in Figure 1 

“creates an alternate path in the backward direction using the same network elements” upon receipt 

of the switch over message. ’755 Patent, 2:19-21. 

80. I also believe that WSOU’s identification of purported algorithms fails to connect 

the claimed function to any sort of algorithm in the specification of the ’755 Patent. WSOU 

identifies three (3) portions of the specification and three (3) different figures that purportedly 

disclose algorithms.

81. WSOU’s first citation is to 2:7-32 of the ’755 Patent’s specification. This does not 

disclose structure for performing the claimed functions. This portion of the specification discusses 

Figure 1 and, with respect to the merging network device, only discusses functions that the merging 

network device can perform. It does not disclose any structures present within the merging 

network device for performing the claimed functions.

82. WSOU’s second citation is to 2:43-60 of the ’755 Patent’s specification. This does 

not disclose structure for performing the claimed functions. This portion of the specification 

references what the patent describes as “a control processing section of a network device” and its 

functionality with respect to the originating network device rather than the merging network 

device. The section provides that “a control processing section of a network device is operable to 

detect or receive a failure notification message indicating that a failure has occurred along a link 

or interface making up a part of a primary path.” Then, the next step according to this citation is 

that “the control processing section is operable to determine whether its’ associated network device 

can operate as an originating network device in an alternate LSP. If so, the control processing 

section, at step 230, sends a switch over message along an alternate path to the merging network 

device . . . [and then] [a]fter the switch over message has been sent to the merging network device, 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 23

the originating network device (via the processing control section) performs a switch over, at step 

240 . . . .” There is no recitation within this citation to structures present within the merging 

network device to perform the claimed functions.

83. WSOU’s third citation is to 3:13-36 of the specification. This does not disclose 

structure for performing the claim functions. At best, this section discloses that the “control 

processing section” of the merging network device uses the switch over message “to determine an 

alternate path in the backward direction” and to “switch[], at step 320, backward flowing traffic to 

the alternate path.” In my opinion a POSITA would not understand what hardware components, 

or software algorithms, would make up the identified “control processing section.” As such, the 

“control processing section” is not sufficient structure for performing the claimed functions. 

84. WSOU’s fourth citation is to Figure 1. This does not disclose structure for 

performing the claimed functions. Rather, Figure 1 is “a simplified block diagram showing an 

MPLS network 105 which includes elements capable of re-routing bi-directional LSP traffic upon 

detection of a failure.” There is no information in Figure 1 to indicate which structures the merging 

network devices comprises that perform the recited functions.

85. WSOU’s fifth citation is to Figure 2. This does not disclose structure for 

performing the claimed functions. Instead, Figure 2 “depicts a simplified flow diagram of 

technique(s) for re-routing MPLS traffic.” Again, there is no information in Figure 2 to indicate 

which structures the merging network devices comprises that perform the recited functions.

86. WSOU’s final citation is to Figure 3. This does not disclose structure for 

performing the claimed function. Rather, Figure 3 relates to the function of the merging network 

device itself. 3:13-16 (“FIG.3 is a simplified flow diagram of technique(s) which can be 

implemented in a merging network device to re-route MPLS traffic to an alternate path.”). There 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 24

is no information in Figure 3 to indicate which structures the merging network devices comprises 

that perform the recited functions. 

87. Thus, in my opinion, the ’755 Patent does not link any corresponding structure to 

the recited functions.

2. “means for re-routing traffic traveling along a bi-directional LSP in a 

forward direction to an alternate path in the forward direction” (claims 

20, 25)

88. I understand that the parties agree that the term identified above is a means-plusfunction term having the function of “re-routing traffic traveling along a bi-directional LSP in a 

forward direction to an alternate path in the forward direction.” I further understand that the parties 

dispute whether the term is indefinite for failing to disclose corresponding structure. In my 

opinion, the ’755 Patent does not disclose any corresponding structure for performing the claimed 

function. 

89. Claim 20 requires a “system for re-routing traffic” comprising “an originating 

network device” that further comprises a “means for re-routing traffic traveling along a bidirectional LSP in a forward direction to an alternate path in the forward direction.” Claim 25 

requires a “system for re-routing traffic” that comprises “means for re-routing traffic traveling 

along a bi-directional LSP in a forward direction to an alternate path in the forward direction.” I 

understand that there is a dispute regarding whether the ’755 Patent links the claimed function to 

corresponding structure in the specification. In my opinion, it does not.

90. In particular the specification does not clearly link any components or algorithms 

to the identified function. I understand that Plaintiff’s proposed structure is “originating network 

device, and equivalents thereof” and “if required” the algorithms contained in “1:51-56, 2:7-32, 

2:43-60, Figs. 1, 2, 3.” I note that this is the same structure Plaintiff proposes for Term #3 

discussed below.

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 25

91. In my opinion, there is no understandable link between the originating network 

device itself and the identified function. Indeed, the claim language in claim 20 provides that the 

“originating network device” must comprise structure that performs the claimed function. ’755 

Patent, 6:1-9. In my opinion a POSITA would not understand that the claimed “originating 

network device” would itself comprise an originating network device as asserted by WSOU.

92. In addition, with respect to claim 25, I understand that the structure disclosed in the 

specification needs to be more than simply a general purpose computer or microprocessor. A 

POSITA would understand the disclosure of an “originating network device” within the context 

of the ’755 Patent to be a general purpose computer or general device. Therefore, the general 

reference to an “originating network device” is not sufficient enough to serve as corresponding 

structure.

93. In addition, while the originating network device is mentioned in the specification 

of the ’755 Patent, it is consistently done so through reference to functions of the originating 

network device. For instance, the specification provides that originating network device 120 in 

Figure 1 “determines an alternate path (elements 120, 170 and 140) or uses a stored predetermined, 

alternate path to send a ‘switch over’ message to ‘merging’ network device 140.” ’755 Patent, 

2:14-19. 

94. I also believe that WSOU’s identification of purported algorithms fail to connect 

the claimed function to any sort of algorithm in the specification of the ’755 Patent. WSOU 

identifies three portions of the specification and three (3) different figures that purportedly disclose 

algorithms.

95. WSOU’s first citation is to 1:51-56. This does not disclose structure for performing 

the claimed function. Rather, this portion of the specification parrots the claim language by 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 26

reciting the function of the originating network device. It does not disclose any structures present 

within the originating network device itself that perform the claim function.

96. WSOU’s second citation is to 2:7-32 of the ’755 Patent’s specification. This does 

not disclose structure for performing the claimed function. This portion of the specification 

discusses Figure 1 and, with respect to the originating network device, only discusses functions 

that the originating network device can perform. It does not disclose any structures present within 

the originating network device for performing the claimed function.

97. WSOU’s third citation is to 2:43-60 of the ’755 Patent’s specification. This does 

not disclose structure for performing the claimed function. This portion of the specification 

references what the patent describes as “a control processing section of a network device” and its 

functionality with respect to the originating network device. The section provides that “a control 

processing section of a network device is operable to detect or receive a failure notification 

message indicating that a failure has occurred along a link or interface making up a part of a 

primary path.” Then, the next step according to this citation is that is “the control processing 

section is operable to determine whether its’ associated network device can operate as an 

originating network device in an alternate LSP. If so, the control processing section, at step 230, 

sends a switch over message along an alternate path to the merging network device . . . [and then] 

[a]fter the switch over message has been sent to the merging network device, the originating 

network device (via the processing control section) performs a switch over, at step 240 . . . .” In 

my opinion a POSITA would not understand what hardware components, or software algorithms, 

would make up the “control processing section.” As such, the “control processing section” is not 

sufficient structure for performing the claimed function. 

98. WSOU’s fourth citation is to Figure 1. This does not disclose structure for 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 27

performing the claimed function. Rather, Figure 1 is “a simplified block diagram showing an 

MPLS network 105 which includes elements capable of re-routing bi-directional LSP traffic upon 

detection of a failure.” There is no information in Figure 1 to indicate which structures the 

originating network device comprises which perform the recited function.

99. WSOU’s fifth citation is to Figure 2. This does not disclose structure for 

performing the claimed function. Instead, Figure 2 “depicts a simplified flow diagram of 

technique(s) for re-routing MPLS traffic.” Again, there is no information in Figure 2 to indicate 

which structures the originating network device comprises which perform the recited function.

100. WSOU’s final citation is to Figure 3. This does not disclose structure for 

performing the claimed function. Rather, Figure 3 relates to the function of the merging network 

device itself. 3:13-16 (“FIG.3 is a simplified flow diagram of technique(s) which can be 

implemented in a merging network device to re-route MPLS traffic to an alternate path.”). There 

is no information in Figure 3 to indicate which structures the originating network devices 

comprises which perform the recited function. 

101. Thus, in my opinion, the ’755 Patent does not link any corresponding structure to 

the recited function.

3. “means for transmitting a switch over message along the alternate path 

in the forward direction to a merging network device responsible for 

re-routing traffic traveling along the bi-directional LSP in a backward 

direction to the alternate path in the backward direction” (Claim 20)

“means for transmitting a switch over message, along the alternate 

path in the forward direction, for re-routing traffic traveling along the 

bi-directional LSP in a backwards direction” (Claim 25)

102. My opinions regarding this term are largely similar to my opinions for term #2, 

above. My opinions are clarified here for completeness.

103. I understand that the parties agree that the terms identified above are means-plusCase 6:20-cv-00534-ADA Document 47-4 Filed 03/05/21 Page 29 of 47
Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 28

function terms having the function identified above (and in claims 20 and 25 respectively). I 

further understand that the parties dispute whether these terms are indefinite for failing to disclose 

corresponding structure. In my opinion, the ’755 Patent does not disclose any corresponding 

structure for performing the claimed functions. 

104. Claim 20 requires a “system for re-routing traffic” comprising “an originating 

network device” that further comprises a “means transmitting a switch over message along the 

alternate path in the forward direction to a merging network device responsible for re-routing 

traffic traveling along the bi-directional LSP in a backward direction to the alternate path in the 

backward direction.” Claim 25 requires a “system for re-routing traffic” that comprises “means 

for transmitting a switch over message, along the alternate path in the forward direction, for rerouting traffic traveling along the bi-directional LSP in a backwards direction.” I understand that 

there is a dispute regarding whether the ’755 Patent links the claimed functions to corresponding 

structures in the specification. In my opinion, it does not.

105. In particular the specification does not clearly link any components or algorithms 

to the identified functions. I understand that Plaintiff’s proposed structure is “originating network 

device, and equivalents thereof” and “if required” the algorithms contained in “1:51-56, 2:7-32, 

2:43-60, 3:9-36, Figs. 1, 2, 3.” I note that this is the same structure Plaintiff proposes for Term #2 

discussed above.

106. In my opinion, there is no understandable link between the originating network 

device itself and the identified functions. Indeed, the claim language in claim 20 provides that the 

“originating network device” must comprise structure that performs the claimed function. ’755 

Patent, 6:1-9. In my opinion a POSITA would not understand that the claimed “originating 

network device” would itself comprise an originating network device as asserted by WSOU.

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 29

107. In addition, with respect to claim 25, I understand that the structure disclosed in the 

specification needs to be more than simply a general purpose computer or microprocessor. A 

POSITA would understand the disclosure of an “originating network device” within the context 

of the ’755 Patent to be a general purpose computer or general device. Therefore, the general 

reference to an “originating network device” is not sufficient enough to serve as corresponding 

structure.

108. In addition, while the originating network device is mentioned in the specification 

of the ’755 Patent, it is consistently done so through reference to functions of the originating 

network device. For instance, the specification provides that originating network device 120 in 

Figure 1 “determines an alternate path (elements 120, 170 and 140) or uses a stored predetermined, 

alternate path to send a ‘switch over’ message to ‘merging’ network device 140.” ’755 Patent, 

2:14-19. 

109. I also believe that WSOU’s identification of purported algorithms fail to connect 

the claimed function to any sort of algorithm in the specification of the ’755 Patent. WSOU 

identifies three portions of the specification and three (3) different figures that purportedly disclose 

algorithms.

110. WSOU’s first citation is to 1:51-56. This does not disclose structure for performing 

the claimed function. Rather, this portion of the specification parrots the claim language by 

reciting the function of the originating network device. It does not disclose any structures present 

within the originating network device itself that perform the claim function.

111. WSOU’s second citation is to 2:7-32 of the ’755 Patent’s specification. This does 

not disclose structure for performing the claimed function. This portion of the specification 

discusses Figure 1 and, with respect to the originating network device, only discusses functions 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 30

that the originating network device can perform. It does not disclose any structures present within 

the originating network device for performing the claimed function.

112. WSOU’s third citation is to 2:43-60 of the ’755 Patent’s specification. This does 

not disclose structure for performing the claimed function. This portion of the specification 

references what the patent describes as “a control processing section of a network device” and its 

functionality with respect to the originating network device. The section provides that “a control 

processing section of a network device is operable to detect or receive a failure notification 

message indicating that a failure has occurred along a link or interface making up a part of a 

primary path.” Then, the next step according to this citation is that is “the control processing 

section is operable to determine whether its’ associated network device can operate as an 

originating network device in an alternate LSP. If so, the control processing section, at step 230, 

sends a switch over message along an alternate path to the merging network device . . . [and then] 

[a]fter the switch over message has been sent to the merging network device, the originating 

network device (via the processing control section) performs a switch over, at step 240 . . . .” In 

my opinion a POSITA would not understand what hardware components, or software algorithms, 

would make up the “control processing section.” As such, the “control processing section” is not 

sufficient structure for performing the claimed functions. 

113. WSOU’s fourth citation is to 3:9-36. This does not disclose structure for 

performing the claimed function. Rather, this section notes a function of the originating device 

(“setting up an alternate path”) and then discusses functionality of the merging network device 

with reference to Figure 3. Towards the end of this citation the patent again discusses functionality 

of the originating network device. There is no information within this section to indicate which 

structures the originating device comprises which perform the recited functions.

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 31

114. WSOU’s fifth citation is to Figure 1. This does not disclose structure for 

performing the claimed function. Rather, Figure 1 is “a simplified block diagram showing an 

MPLS network 105 which includes elements capable of re-routing bi-directional LSP traffic upon 

detection of a failure.” There is no information in Figure 1 to indicate which structures the 

originating network device comprises which perform the recited functions.

115. WSOU’s sixth citation is to Figure 2. This does not disclose structure for 

performing the claimed function. Instead, Figure 2 “depicts a simplified flow diagram of 

technique(s) for re-routing MPLS traffic.” Again, there is no information in Figure 2 to indicate 

which structures the originating network device comprises which perform the recited functions.

116. WSOU’s final citation is to Figure 3. This does not disclose structure for 

performing the claimed function. Rather, Figure 3 relates to the function of the merging network 

device itself. 3:13-16 (“FIG.3 is a simplified flow diagram of technique(s) which can be 

implemented in a merging network device to re-route MPLS traffic to an alternate path.”). There 

is no information in Figure 3 to indicate which structures the originating network devices 

comprises which perform the recited functions. 

117. Thus, in my opinion, the ’755 Patent does not link any corresponding structure to 

the recited functions.

4. “means for means for [sic] receiving traffic traveling along a bidirectional LSP in a forward direction to an alternate path in the 

forward direction” (claim 23)

118. My opinions regarding this term are largely similar to my opinions for term #1, 

above. My opinions are clarified here for completeness.

119. I understand that the parties agree that the term identified above is a means-plusfunction term having the function of “receiving traffic traveling along a bi-directional LSP in a 

forward direction to an alternate path in the forward direction.” I further understand that the parties 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 32

dispute whether the term is indefinite for failing to disclose corresponding structure. In my 

opinion, the ’755 Patent does not disclose any corresponding structure for performing the claimed 

function. 

120. Claim 23 requires a “merging network device” comprising “means for receiving 

traffic traveling along a bi-directional LSP in a forward direction to an alternate path in the forward 

direction.” I understand that there is a dispute regarding whether the ’755 Patent links the claimed 

functions to corresponding structure in the specification. In my opinion, it does not.

121. In particular the specification does not clearly link any components or algorithms 

to the identified function. I understand that Plaintiff’s proposed structure is “merging network 

device, and equivalents thereof” and “if required” the algorithms contained in “2:7-32, 2:43-60, 

3:13-36, Figs. 1, 2, 3.” I note that this is the exact same structure Plaintiff identified for Term #1 

discussed above.

122. In my opinion, there is understandable link between the merging network device 

itself and the identified function. Indeed, the claim language in claim 23 provides that the 

“merging network device” must comprise structure that performs the claimed function. ’755 

Patent, 6:20-27.

123. In my opinion a POSITA would not understand that the claimed “merging network 

device” would itself comprise a merging network device as asserted by WSOU.

124. In addition, while the merging network device is mentioned in the specification of 

the ’755 Patent, it is consistently done so through reference to functions of the merging network 

device. For instance, the specification provides that merging network device 140 in Figure 1 

“creates an alternate path in the backward direction using the same network elements” upon receipt 

of the switch over message. ’755 Patent, 2:19-21. 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 33

125. I also believe that WSOU’s identification of purported algorithms fails to connect 

the claimed function to any sort of algorithm in the specification of the ’755 Patent. WSOU 

identifies three portions of the specification and three (3) different figures that purportedly disclose 

algorithms.

126. WSOU’s first citation is to 2:7-32 of the ’755 Patent’s specification. This does not 

disclose structure for performing the claimed function. This portion of the specification discusses 

Figure 1 and, with respect to the merging network device, only discusses functions that the merging 

network device can perform. It does not disclose any structures present within the merging 

network device for performing the claimed function.

127. WSOU’s second citation is to 2:43-60 of the ’755 Patent’s specification. This does 

not disclose structure for performing the claimed function. This portion of the specification 

references what the patent describes as “a control processing section of a network device” and its 

functionality with respect to the originating network device rather than the merging network 

device. The section provides that “a control processing section of a network device is operable to 

detect or receive a failure notification message indicating that a failure has occurred along a link 

or interface making up a part of a primary path.” Then, the next step according to this citation is 

that is “the control processing section is operable to determine whether its’ associated network 

device can operate as an originating network device in an alternate LSP. If so, the control 

processing section, at step 230, sends a switch over message along an alternate path to the merging 

network device . . . [and then] [a]fter the switch over message has been sent to the merging network 

device, the originating network device (via the processing control section) performs a switch over, 

at step 240 . . . .” There is no recitation within this citation to structures present within the merging 

network device to perform the claimed function.

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 34

128. WSOU’s third citation is to 3:13-36 of the specification. This does not disclose 

structure for performing the claim functions. At best, this section discloses that the “control 

processing section” of the merging network device uses the switch over message “to determine an 

alternate path in the backward direction” and to “switch[], at step 320, backward flowing traffic to 

the alternate path.” In my opinion a POSITA would not understand what hardware components, 

or software algorithms, would make up the “control processing section.” As such, the “control 

processing section” is not sufficient structure for performing the claimed functions. 

129. WSOU’s fourth citation is to Figure 1. This does not disclose structure for 

performing the claimed function. Rather, Figure 1 is “a simplified block diagram showing an 

MPLS network 105 which includes elements capable of re-routing bi-directional LSP traffic upon 

detection of a failure.” There is no information in Figure 1 to indicate which structures the merging 

network devices comprises which perform the recited function.

130. WSOU’s fifth citation is to Figure 2. This does not disclose structure for 

performing the claimed function. Instead, Figure 2 “depicts a simplified flow diagram of 

technique(s) for re-routing MPLS traffic.” Again, there is no information in Figure 2 to indicate 

which structures the merging network devices comprises which perform the recited function.

131. WSOU’s final citation is to Figure 3. This does not disclose structure for 

performing the claimed function. Rather, Figure 3 relates to the function of the merging network 

device itself. 3:13-16 (“FIG.3 is a simplified flow diagram of technique(s) which can be 

implemented in a merging network device to re-route MPLS traffic to an alternate path.”). There 

is no information in Figure 3 to indicate which structures the merging network devices comprises 

which perform the recited function. 

132. Thus, in my opinion, the ’755 Patent does not link any corresponding structure to 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 35

the recited function.

C. Disputed Terms for the ’973 Patent

1. “the message” (claims 1, 9)

133. In my opinion, a POSITA would not understand with reasonable certainty what the 

scope of the term “the message” in claim element [1d] (“sending the message from the upstream 

device to an upstream network device to thereby control a rate at which the upstream device 

receives packets from the upstream network device”) covers. This is because there are two

different messages separately introduced in claim element [1b] (“sending a message to the 

upstream device to reduce a rate at which packets are sent to the queuing device to prevent the 

queue from filling, thereby preventing packet discarding and loss by the queuing device”) 

(hereinafter referred to as “Message 1”) and claim element [1c] (“sending a message reporting the 

depth of the queue to the upstream device to thereby enable the upstream device to determine 

whether to reduce or increase the rate at which the upstream device sends packets to the queuing 

device”) (hereinafter referred to as “Message 2”), and it is unclear which message, namely 

Message 1 in claim element [1b] or Message 2 in claim element [1c], is “the message” in claim 

element [1d]. I note that the same issue also occurs in claim 9. Therefore, it is my opinion that 

the term “the message” in claims 1 and 9 is indefinite. For the sake of brevity, my opinions as 

provided below only recite claim elements in claim 1. However, the same arguments equally apply 

to claim 9, which has similar claim language. 

134. In my opinion, a POSITA would view the claimed Messages 1 and 2 as different 

messages to be received by an upstream device in view of the intrinsic evidence, including the 

claim language, specification, and prosecution history of the ’973 Patent. Therefore, being unable 

to ascertain to which message “the message” in claim element [1d] refers will make the scope of 

“the message” unclear. As a result, claims 1 and 9 are indefinite. 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 36

135. The specification of the ’973 Patent provides that an upstream device may adjust a 

rate of packets to prevent packet loss in two ways, including (1) “passively” enforce a command 

to reduce a rate of the packets, and/or (2) “actively” control a rate of the packets by determining 

whether to reduce or increase the rate based on the received depth of the queue in a queuing device. 

It is clear that the Message 1 as claimed corresponds to “passively” enforcing a command to reduce 

a rate of the packets because Message 1 is a message instructing an upstream device to reduce a 

rate of the packets. The sending of Message 1 is triggered “if the depth of the queue passes a 

predetermined threshold,” which indicates that the queue(s) in the queuing device are congested. 

’973 Patent, Claim 1 and 5:55-60. 

136. With respect to “passively” enforcing a command, the specification of the ’973 

Patent also provides that another message may be sent to the upstream device to increase the rate

of packets “if the depth drops below the predetermined threshold,” which indicates that the 

queue(s) in the queuing device are drained. ’973 Patent, Claim 2 and 5:60-62. That message 

appears to correspond to the subject matter recited in claim 2. 

137. On the other hand, Message 2 corresponds to “actively” controlling a rate of the 

packets because Message 2 is a message reporting the depth of the queue to enable the upstream 

device to actively control a rate of the packets based on the received depth of the queue. 

138. The prosecution history also shows the difference between Messages 1 and 2. For 

example, the patent applicants amended the claims to add the claim element [1c] of Message 2 in 

response to the patent examiner’s assertion that the Gupta prior art reference discloses Message 1. 

See Exhibit D, “01/06/2009 non-final Office Action in the prosecution history of the ’973 Patent,” 

at 3 and Exhibit E, “03/03/2009 Office Action response in the prosecution history of the ’973 

Patent,” at 2, 4. 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 37

139. Moreover, the patent applicants argued in a Pre-appeal Brief: 

Exhibit F, “04/08/2009 Pre-appeal Brief in the prosecution history of the ’973 Patent,” at 3 

(emphasis added). In the Appeal Brief, the patent applicants also argued: 

Exhibit G, “07/17/2009 Appeal Brief in the prosecution history of the ’973 Patent,” at 11 

(emphasis added). 

140. According to the prosecution history as highlighted above, the patent applicants

argued that Message 2 is different from Message 1 in order to overcome a rejection based on the 

Gupta prior art that discloses a direct command dictating/instructing an ingress queue (the claimed 

upstream device) to slow down a rate of packets, which is Message 1. Therefore, it is my opinion 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 38

that a POSITA would understand, as the patent applicants made it clear, that Message 1, like 

Gupta’s direct command, is a message to directly instruct/command/dictate an upstream device to 

reduce a rate of packets. A POSITA would also understand that Message 1 is not like Message 2

because it is not a message to enable an upstream device itself to actively control a rate of packets. 

141. The claim language in claims 1 and 9 also reveals the difference between Messages 

1 and 2. For example, when Message 2 is introduced in claim element [1c], it is introduced as “a 

message reporting the depth . . . ,” instead of “the message reporting the depth.” ’973 Patent, 

Claim 1.

142. WSOU asserts that “the message” refers to Message 1 in claim element [1b]. See

Opening Brief, at 5. I disagree, because in my opinion, the intrinsic evidence fails to inform a 

POSITA whether “the message” refers to Message 1 or Message 2. 

143. Specifically, claim element [1d] recites “sending the message from the upstream 

device to an upstream network device to thereby control a rate at which the upstream device 

receives packets from the upstream network device.” ’973 Patent, Claim 1. A POSITA would 

not understand which way of controlling the rate is specified in claim element [1d]. Therefore, it 

is unclear which message, namely Message 1 and Message 2, should be sent to an upstream 

network device. In my opinion, the phrase “to thereby control a rate” only states an effect resulted 

from the operation of an upstream network device after it receives “the message” from an upstream 

device. 

144. WSOU asserts that “in [claim] element 1c, the act of sending of [sic] the message 

itself does not affect rate,” and, therefore “only [claim] elements 1b and 1d specify that the sending 

of the message is to either reduce or control a rate.” Opening Brief, at 5, 7. In my opinion, a

POSITA would not agree with such assertions. For example, the claim language and specification 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 39

explicitly recite that Message 2 in claim element [1c] can enable an upstream device to determine 

whether to reduce or increase the rate, and, therefore, Message 2 also acts with respect to 

controlling a rate of packets. ’973 Patent, Claim 1 and 7:17-21. Moreover, during prosecution, 

the patent applicants amended the claims to add element [1c] and Message 2 and explicitly argued 

that “[b]y periodically reporting queue depths rather than only reporting threshold crossing events, 

the system will let the source determine an appropriate transmit rate . . . .” Exhibit E, “03/03/2009 

Office Action response in the prosecution history of the ’973 Patent,” at 2, 4, 13. 

145. In fact, a POSITA would understand that to fully control a rate of packets, a device 

should be able to either reduce or increase the rate. Therefore, compared to Message 1, which 

only instructs an upstream device to reduce a rate of packets, Message 2 can enable the upstream 

device to fully control a rate of packets by either reducing or increasing the rate. As such, I do not 

agree with WSOU’s position that “the message” should only refer to Message 1 in claim element 

[1b]. 

146. Further, I believe that WSOU’s claims that the act of sending Message 2 itself does 

not affect a rate is incorrect. See Opening Brief, at 7. First, as stated above, Message 2 also 

involves a rate control. Second, a POSITA would understand that the act of sending any message 

to an upstream device itself would not affect a rate of packets. Instead, the rate is actually affected 

by the operation of the upstream device after receiving Message 1 and/or Message 2. 

147. Based on the foregoing, it is my opinion that WSOU’s assertion that “the message” 

refers to only Message 1 is incorrect. It is further my opinion that a POSTIA cannot ascertain the 

meaning of “the message” in claim element [1d] based on the claim language, specification, or 

prosecution history of the ’973 Patent. Therefore, claims 1 and 9, requiring “the message,” are 

indefinite. 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 40

2. “a module for, if the depth of the queue passes a predetermined 

threshold, sending a message to the upstream device to reduce a rate at 

which packets are sent to the queuing device to prevent the queue from 

filling, thereby preventing packet discarding and loss by the queuing 

device” (“Module 1”) (claim 9) 

3. “a module for sending a message reporting the depth of the queue to 

the upstream device to thereby enable the upstream device to 

determine whether to reduce or increase the rate at which the upstream 

device sends packets to the queuing device” (“Module 2”) (claim 9)

4. “a module for sending the message from the e stream device to an 

upstream network device to thereby control a rate at which the 

upstream device receives packets from the upstream network device” 

(“Module 3”) (claim 9) 

148. I understand that the parties dispute whether the claim terms above are drafted as 

“means-plus-function” terms. It is my opinion that these terms are means-plus-function terms

because they fail to recite sufficient structure for performing the functions in the claim language. 

149. WSOU asserts that the claim language recites a specific structure that can perform 

the functions as claimed in current terms because the claim language recites various devices in the 

preamble and a processor. See Opening Brief, at 8-10. However, those descriptions are high-level 

descriptions about various devices and a processor in a network device. In my opinion, a POSITA 

would not understand what structure performs the functions as claimed. 

150. Claim 9 recites “modules executed by the processor, the modules including:” the 

Modules 1, 2, and 3 in dispute, and “[a] system for incorporating a queuing device as a lossless 

processing stage in a network device in a communications network between an upstream device 

and a downstream device in the network device.” ’973 Patent, Claim 9. However, the claim 

language itself fails to disclose any structural character between the current terms and those devices

as recited above, including a processor, a queuing device, an upstream device, a downstream 

device, and a network device. Moreover, the word “module” itself does not indicate any structure 

to perform the functions as claimed. 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 41

151. For example, in my opinion, a POSITA cannot ascertain whether the structure for 

performing each of the functions as claimed in Modules 1, 2, and 3 are located within any of those 

devices as recited by the preamble, or external to all of them. 

152. As a further example, a POSITA also cannot ascertain whether the same or different 

structure(s) perform(s) the functions as claimed in Modules 1, 2, and 3 and another module as 

recited in claim 9, and/or any associated structural interaction between Modules 1, 2, and 3 and 

another module as recited in claim 9. 

153. Tellingly, the claim language of claim 9 does not require that any of the Modules 

1, 2, and 3 “comprise or include” any structure, such as a processor, a memory, any physical 

device, or any combination thereof. Therefore, in my opinion, a POSITA would not understand 

what structure performs the functions as claimed. 

154. WSOU also asserts that the claim language recites sufficient structure by citing to 

Fig. 3 of the ’973 Patent, which shows software modules 331 residing in memory 330. See

Opening Brief, at 10. However, a POSITA would not understand whether the claim language 

recites sufficient structure for performing the functions as claimed based only on the disclosures 

in the specification, including the memory 330. See ’973 Patent, Fig. 3. According to the above, 

it is my opinion that the current terms should be considered as means-plus-function terms. 

155. If the current terms are construed as means-plus-function terms, in my opinion, 

there is no corresponding structure described in the specification of the ’973 Patent that performs 

the claimed functions. Therefore, claim 9 is indefinite. 

156. Specifically, Figs. 2 and 3 of the ’973 Patent disclose a processor (160 or 320) and 

a memory (330) of a data processing system (300). See ’973 Patent, Figs. 2-3 and 4:31-39 and 59-

64. At most, with respect to “modules,” the specification states “the programmed instructions may 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 42

be embodied in one or more software modules 331 resident in the memory 330.” ’973 Patent, 

4:62-63. However, I understand that the structure disclosed in the specification needs to be more 

than simply a general purpose computer or microprocessor. Therefore, a processor, a memory, or 

combination of them as generally disclosed by the specification of the ’973 Patent is not sufficient

enough to serve as corresponding structure for the current terms. 

157. I understand that when the claim requires a computer-implemented function, the 

specification should generally disclose an algorithm that accomplishes the claimed function. In 

my opinion, however, an algorithm that accomplishes the claimed functions in Modules 1, 2, and 

3 is not disclosed in the specification of the ’973 Patent. 

158. As to Modules 1 and 2, the specification fails to disclose any algorithm that 

accomplishes either the step of “if the depth of the queue passes a predetermined threshold, sending 

a message to the upstream device to reduce a rate at which packets are sent to the queuing device

. . ,” or the step of “sending a message reporting the depth of the queue to the upstream device to 

thereby enable the upstream device . . ,” as claimed. For example, the flow chart in Fig. 3 and 

corresponding description at 7:1-21 are not sufficient because they only mirror the functions as 

required by the claim language. See ’973 Patent, Fig. 3 and 7:1-21. 

159. There is no further disclosure regarding a particular procedure for sending a 

message to an upstream device to reduce a rate of packets to the queuing device thereby preventing 

packet discarding and loss by the queuing device. A POSITA would understand that in order to

prevent packet discarding and loss by the queuing device, certain interaction or coordination must 

occur among several entities, namely an upstream device (which sends packets), a queuing device 

(which receives packets), and “certain unknown structure” (which sends a message to the upstream 

device), at least regarding the status of the queues in the queuing device and a rate of packets. 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 43

However, none of such interaction or coordination is described in the specification.

160. There is also no disclosure regarding a particular procedure for enabling the 

upstream device to determine whether to reduce or increase the rate. A POSITA would understand 

that in order to enable an upstream device to determine whether to reduce or increase a rate of 

packets, certain interaction or coordination must occur among several entities, namely an upstream 

device (which sends packets), a queuing device (which receives packets and reports the depth of 

the queues), and “certain unknown structure” (which receives information about the depth of the 

queue from the queuing device and sends a message to the upstream device accordingly), 

However, none of such interaction or coordination is described in the specification. 

161. As to Module 3, it is further my opinion that the specification fails to disclose any 

algorithm that accomplishes the step of “sending the message from the e stream device to an 

upstream network device to thereby control a rate.” There is not even a flow chart or similar 

description that describes an algorithm to perform the function as claimed in Module 3. 

162. In my opinion, the specification at 6:26-32 is the only paragraph that is relevant to 

the function as claimed in Module 3. See ’973 Patent, 6:26-32 (“the upstream device 120 may 

forward or relay a message from the queuing device 140 . . . to an upstream network device”). 

However, that disclosure still fails to disclose any interaction or coordination occurring between 

the upstream device and “certain structure” that makes the upstream device forward the message 

to an upstream network device to thereby control a rate of packets.

163. Moreover, with respect to packet transmission, the specification discloses that 

various packets may be transmitted between an upstream network device and a network device, 

such as Internet Protocol (“IP”) packets, multiprotocol label switching (“MPLS”) packets, or 

asynchronous transfer mode (“ATM”) packets. See ’973 Patent, 7:27-30. However, the 

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Declaration of Dr. Tal Lavian regarding claim construction (‘627, ‘755, and ‘973) 44

specification is wholly silent as to detailed protocols, formats, or encoding/decoding methods of 

the claimed message that are needed in coordination/interaction among multiple entities (at least 

including an upstream network device, an upstream device in a network device, and “certain 

structure” that makes the upstream device send the message to the upstream network device) to 

adjust transmissions of various packets. The specification also fails to disclose any procedure or 

algorithms as to how “certain structure” makes the upstream device be able to forward the message 

that relates to adjusting a rate of packets within a network device to an external upstream network 

device to thereby control a rate of packets from the external upstream network device to the 

network device. 

164. In conclusion, because the specification of the ’973 Patent fails to disclose an 

algorithmic structure that performs the claimed functions in the current terms, it is my opinion that 

claim 9 is indefinite. 

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