IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC D/B/A 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v. 

ZTE CORPORATION, ZTE (USA) 

INC.; AND ZTE (TX), INC.,

Defendants.

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§

CIVIL ACTION 6:20-cv-00489-ADA

CIVIL ACTION 6:20-cv-00492-ADA

CIVIL ACTION 6:20-cv-00495-ADA

PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 1 of 27
i

TABLE OF CONTENTS

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

Table of Authorities..................................................................................................................... iii

Exhibit.............................................................................................................................................v

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

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

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

II. U.S. Patent No. 7,487,240 (Case No. 6:20-cv-00489).......................................................2

A. Overview of the ’240 Patent..................................................................................2

B. Terms with Disputed Constructions.....................................................................3

1. “verifying connectivity in the network relating to at least 

Layer-2 and Layer-3 objects” (claims 1, 6, and 13)................................3

2. “a given containment hierarchy” (claims 1, 6, and 13) ..........................3

3. “user-input specification” (claims 1, 6, and 13) ......................................7

4. “the containment hierarchy affected by the connectivity 

verification result[]” (claims 1, 6, and 13)................................................7

III. U.S. Patent No. 8,147,071 (Case No. 6:20-cv-00492).......................................................8

A. Overview of the ’071 Patent..................................................................................8

B. Terms with Disputed Constructions.....................................................................9

1. “the processor” / “wherein the processor is configured to” 

(claims 1, 9, 13, and 14)..............................................................................9

2. “movement signalling” / “receiv[ing] movement signalling 

associated with the movement of the projector” / 

“corresponding movement signalling” (claims 1, 9, 13, and 14)............9

3. “discriminate” / “discriminate a movement criterion” / “the 

processor is configured to discriminate a movement criterion” 

(claims 1, 13, 14).........................................................................................9

4. “provide associated image data signalling to project associated 

image data” (claims 1, 13, 14) ...................................................................9

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 2 of 27
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IV. U.S. Patent No. 9,258,232(Case No. 6:20-cv-00495)......................................................14

A. Overview of the ’232 Patent................................................................................14

B. Terms with Disputed Constructions...................................................................14

1. “flow control” (claims 1) .........................................................................14

2. “transmission over a link” (claims 1 & 14)............................................16

3. “period of congestion” (claims 1 & 14) ..................................................17

4. “rate limiting” (claims 1 & 14) ...............................................................17

5. “instructions for execution by a traffic flow control system for 

performing flow control on a flow of data packets for 

transmission over a link” (claim 14) ......................................................18

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TABLE OF AUTHORITIES

Cases

Azure Networks, LLC v. CSR PLC,

771 F.3d 1336 (Fed. Cir. 2014)................................................................................................... 1

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

93 F. Supp. 3d 575 (E.D. Tex. 2015).................................................................................... 7, 17

CloudofChange, LLC v. NCR Corp.,

No. 6-19-CV-00513-ADA, 2020 WL 4004810 (W.D. Tex. July 15, 2020)........................... 1, 2

Collaborative Agreements, LLC v. Adobe Systems Inc.,

Case No. A–14–CV–356–LY, 2015 WL 2250391 (W.D. Tex. 2015) .................................... 19

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

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

Crossroads Sys., (Texas), Inc. v. Chaparral Network Storage, Inc.,

No. A 00 CA 217 SS, 2000 WL 35731852 (W.D. Tex. July 27, 2000) ................................... 19

In re Beauregard,

53 F.3d 1583 (Fed. Cir. 1995)................................................................................................... 19

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

351 F. Supp. 3d 1100 (N.D. Ill. 2018)............................................................................ 5, 11, 16

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

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

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)......................................................................................... 1, 7, 14

Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,

844 F.3d 1370 (Fed. Cir. 2017)................................................................................................... 2

Spansion, Inc. v. Int'l Trade Comm’n,

629 F.3d 1331 (Fed. Cir. 2010)....................................................................................... 5, 11, 16

Toshiba Corp. v. Imation Corp.,

681 F.3d 1369 (Fed. Cir. 2012)................................................................................................. 15

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

1-17-CV-001158-LY, 2020 WL 1906898 (W.D. Tex. Apr. 17, 2020) ................................ 7, 17

Whirlpool Corp. v. Ozcan,

No. 2:15-CV-2103-JRG, 2016 WL 7474517 (E.D. Tex. Dec. 29, 2016)....................... 5, 11, 16

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 4 of 27
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Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)................................................................................................. 18

Zeroclick, LLC v. Apple Inc.,

891 F. 3d 1003 (Fed. Cir. 2018)................................................................................................ 18

Statutes

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

Rules

37 CFR §1.72................................................................................................................................ 15

MPEP §608.01(b) (8th ed. Rev. 7 July 2008)............................................................................... 15

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EXHIBIT

Exhibit Description

A ZTE’s Invalidity Contentions (served Jan. 6, 2021).

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Plaintiff WSOU Investments, LLC d/b/a Brazos License and Development (“WSOU”)

respectfully submits this Opening Claim Construction Brief.

I. Legal Standards

A. Claim Construction Generally

The general rule is that claim terms are generally given their plain-and-ordinary meaning. 

Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc), cert. denied, 546 U.S. 

1170 (2006); Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated 

on other grounds by 135 S. Ct. 1846, 1846 (2015) (“There is a heavy presumption that claim terms 

carry their accustomed meaning in the relevant community at the relevant time.”). The plain and 

ordinary meaning of a term is the “meaning that the term would have to a person of ordinary skill 

in the art in question at the time of the invention.” Philips,415 F.3d at 1313. “‘Although the 

specification may aid the court in interpreting the meaning of disputed claim language, particular 

embodiments and examples appearing in the specification will not generally be read into the 

claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting 

Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)). Although 

extrinsic evidence can also be useful, it is ‘“less significant than the intrinsic record in determining 

the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, 

Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). 

This Court recently explained that “[t]he ‘only two exceptions to [the] general rule’ that 

claim terms are construed according to their plain and ordinary meaning are when the patentee 

(1) acts as his/her own lexicographer or (2) disavows the full scope of the claim term either in the 

specification or during prosecution.” CloudofChange, LLC v. NCR Corp., No. 6-19-CV-00513-

ADA, 2020 WL 4004810, at *2 (W.D. Tex. July 15, 2020) (quoting Thorner v. Sony Computer 

Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as his/her own lexicographer, the 

patentee must ‘clearly set forth a definition of the disputed claim term,’ and ‘clearly express an 

intent to define the term.’” Id. (quoting Thorner, 669 F.3d at 1365). And “[t]o disavow the full 

scope of a claim term, the patentee’s statements in the specification or prosecution history must 

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 7 of 27
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represent ‘a clear disavowal of claim scope.’” Id. (quoting Thorner, 669 F.3d at 1366). 

“Accordingly, when ‘an applicant’s statements are amenable to multiple reasonable 

interpretations, they cannot be deemed clear and unmistakable.’” Id. (quoting 3MInnovative 

Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013)).

B. Indefiniteness

The Patent Act requires claims to particularly point out and distinctly claim the subject 

matter regarded as the inventions. 35 U.S.C. § 112, ¶ 2. To satisfy this requirement, the claim must 

be read in light of the intrinsic evidence to determine whether it informs one of skill in the art at 

the time of the invention “about the scope of the invention with reasonable certainty.” Nautilus, 

Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910-11 (2014). To establish that a claim is indefinite, 

a patent challenger must prove indefiniteness by clear and convincing evidence. Sonix Tech. Co. 

v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).

II. U.S. Patent No. 7,487,240 (Case No. 6:20-cv-00489)

A. Overview of the ’240 Patent

The application that led to the issuance of the U.S. Patent No. 7,487,240 (“the ’240 patent”) 

was filed on April 8, 2004 and claims priority to a foreign application filed on April 15, 2003 (and 

hence pre-AIA statutes apply). The ’240 patent generally “relates to communications network 

management and service provisioning, and in particular to methods and apparatus for centralized 

Internet Protocol/Multi-Protocol Label Switching connectivity verification in a communications 

network managed context ensuring adherence to service level agreements” ’240 patent, 1:9‒14. 

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B. Terms with Disputed Constructions

1. “verifying connectivity in the network relating to at least Layer-2 and 

Layer-3 objects” (claims 1, 6, and 13)

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

2. “a given containment hierarchy” (claims 1, 6, and 13)

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

The disputed “verifying connectivity ...” and “a given containment hierarchy” terms are 

both presumptively definite by statute. Each term, when read in light of the intrinsic evidence, 

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

invention with reasonable certainty.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 

910−11 (2014). Independent claims 1, 6, and 13 are reproduced below with the terms ZTE 

contends are indefinite in yellow highlighting and the two terms ZTE contends lack written 

description / enablement (addressed in Sections II.B.3. and II.B.4 below) in blue highlighting:

1. A network management connectivity verification framework comprising:

a connectivity verification server to perform unattended connectivity 

verification jobs; and

a connectivity verification application to:

define connectivity verification jobs capable of verifying 

connectivity in the network relating to at least Layer-2 

and Layer-3 objects within a given containment hierarchy 

for the network,

control the connectivity verification server to perform the defined 

connectivity verification jobs, wherein the performing 

generates at least one of connectivity verification results,

display the connectivity verification results,

receive a user-input specification of a connectivity verification 

threshold,

compare the connectivity verification results to the specified 

connectivity verification threshold,

generate an alarm when the comparison shows that at least one of 

the connectivity verification results has reached the 

specified connectivity verification threshold,

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 9 of 27
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identify Layer-2 and Layer-3 objects within the containment 

hierarchy affected by the connectivity verification results

associated with the alarm, and

display the identified Layer-2 and Layer-3 objects.

6. A method implemented at least in part by a connectivity verification server for 

creating a network connectivity verification test, comprising the following 

steps:

defining a connectivity verification job capable of verifying connectivity 

in the network relating to at least Layer-2 and Layer-3 objects 

within a given containment hierarchy for the network;

controlling the connectivity verification server to perform the connectivity 

verification job wherein the performing generates at least one of 

connectivity verification results;

displaying the connectivity verification results;

receiving a user-input specification of a connectivity verification 

threshold;

comparing the connectivity verification results to the specified 

connectivity verification threshold;

generating an alarm when the comparison shows that at least one of the 

connectivity verification results has reached the specified 

connectivity verification threshold;

identifying Layer-2 and Layer-3 objects within the containment hierarchy 

affected by the connectivity verify cation results associated with 

the alarm; and

displaying the identified Layer-2 and Layer-3 objects.

13. A method implemented at least in part by a connectivity verification server for 

performing a network connectivity verification test in a network 

management context comprising the following steps:

scheduling a connectivity verification process, the process capable of 

verifying connectivity in the network relating to at least Layer-2 

and Layer-3 objects within a given containment hierarchy for the 

network;

receiving a user-input specification of a connectivity verification 

threshold;

performing the scheduled connectivity verification process to generate a 

connectivity verification result;

comparing the connectivity verification result with the user-specified 

connectivity verification threshold;

generating an alarm when the comparison shows that the connectivity 

verification result has reached the specified connectivity 

verification threshold;

identifying Layer-2 and Layer-3 objects within the containment hierarchy 

affected by the connectivity verification result associated with the 

alarm; and

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 10 of 27
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displaying the identified Layer-2 and Layer-3 objects.

’240 patent, claim 1 (16:34−42); claim 6 (17:10-32); and claim 13 (18:10-30).

1

For both of the yellow-highlighted terms that ZTE contends are indefinite, the burden rests 

with ZTE to overcome the presumption of definiteness by clear and convincing evidence. It is 

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

reliance on expert testimony to support its position. See, e.g., Lecat’s Ventriloscope v. MT Tool & 

Mfg., 351 F. Supp. 3d 1100, 1114 (N.D. Ill. 2018) (finding a “garden-variety theory of 

indefiniteness ‘requires a determination whether those skilled in the art would understand what is 

claimed’”); Spansion, Inc. v. Int'l Trade Comm’n, 629 F.3d 1331, 1344 (Fed. Cir. 2010) (citation 

omitted) (“the Court [should] conclude[] that expert testimony is necessary here to meet the 

exacting burden of proof.”); Whirlpool Corp. v. Ozcan, No. 2:15-CV-2103-JRG, 2016 WL 

7474517, at *3 (E.D. Tex. Dec. 29, 2016) (rejecting indefiniteness contention and noting that the 

accused infringer only provided attorney arguments to support its position and no expert 

testimony).

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

terms of the ’240 patent ZTE purports to challenge. ZTE’s Invalidity Contentions merely provide 

a bulleted list of claim language which includes the above terms (among others). ZTE’s Invalidity 

Contentions (served Jan. 6, 2021) at 55 (Ex. A). ZTE introduced its bulleted list with the following 

conclusory and ambiguous statement: “[b]ased on ZTE’s present understanding of (and Plaintiff’s 

apparent interpretation of) the Asserted Claims, the Asserted Claims of the ’240 Patent below fail 

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

the subject matter which the inventors regard as the alleged invention for the following terms[.]” 

Id. That single, conclusory statement is literally all that ZTE opted to disclose in connection with 

its present challenge of the “verifying connectivity in the network...” and “a given containment 

hierarchy” terms. See id.

1

Emphasis is added unless otherwise noted.

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

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

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

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

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

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

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

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

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

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

the disputed terms:

A connectivity verification application 502 makes use of a network map provided 

via an IP map application 504 and/or a Layer 2 map application 506 to enable 

selection 600 of displayed 602 source 102S and destination 102D network nodes 

from a group of managed network nodes tracked via a containment hierarchy 508 

by a Managed Object Server (MOL) 511 of a Network Management System 

(NMS).

The selected 600 source 102S and destination 104D network nodes are used in 

defining 604 a connectivity verification job. A schedule may also be defined 606 

for the connectivity verification job, although once defined 604 the connectivity 

verification job may be dispatched 610 for execution immediately. Defining 604 of 

the connectivity verification job includes specifying connectivity verification 

parameters including the type and the number of connectivity verification tests to 

be performed, and optionally specifying thresholds 520 to be applied to 

connectivity verification results returned (as described herein below).

’240 patent, 7:59−8:2.

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 12 of 27
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3. “user-input specification” (claims 1, 6, and 13)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Lack of written description/enablement under 

35 U.S.C. § 112(a) 

4. “the containment hierarchy affected by the connectivity verification 

result[]” (claims 1, 6, and 13)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Lack of written description/enablement under 

35 U.S.C. § 112(a) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. U.S. Patent No. 8,147,071 (Case No. 6:20-cv-00492) 

A. Overview of the ’071 Patent

The application that led to the issuance of the U.S. Patent No. 8,147,071 (“the ’071 patent”) 

was filed on April 29, 2009 (and hence pre-AIA statutes apply). The ’071 patent generally “relates 

to the field of projecting images and sensing movement, as well as associated methods, computer 

programs and apparatus.” ’071 patent, 1:6‒8.

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 14 of 27
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B. Terms with Disputed Constructions

1. “the processor” / “wherein the processor is configured to” (claims 1, 

9, 13, and 14)

2

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

2. “movement signalling” / “receiv[ing] movement signalling associated 

with the movement of the projector” / “corresponding movement 

signalling” (claims 1, 9, 13, and 14)3

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

3. “discriminate” / “discriminate a movement criterion” / “the processor 

is configured to discriminate a movement criterion” (claims 1, 13, 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

4. “provide associated image data signalling to project associated image 

data” (claims 1, 13, 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

All terms in the above-listed groups are presumptively definite.4Each term, when read in 

light of the intrinsic evidence, presumptively informs one of skill in the art at the time of the 

2

 Because ZTE has failed to provide notice of its indefiniteness theory, WSOU reserves the right 

to object to whether these two terms are properly grouped and/or whether they are “same or similar 

terms” to be ordered together per the Order Governing Procedures 3.2 (OGP 3.2). In particular, 

WSOU notes that one of the terms in Section III.B.3. is “the processor is configured to discriminate 

a movement criterion,” which overlaps substantially with the term in Section III.B.3.

3 In its Invalidity Contentions, ZTE did not identify the term “movement signalling” by itself as 

indefinite under 35 U.S.C. §112(2). See Invalidity Contentions at 60. Accordingly, ZTE has not 

preserved its indefiniteness challenge on the standalone term “movement signalling.” 

4

WSOU has addressed these four groups of terms in one section because ZTE has not provided 

any notice of its indefiniteness theory and to avoid repeating the same legal arguments that apply 

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 15 of 27
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invention “about the scope of the invention with reasonable certainty.” Nautilus, 572 U.S. at 

910−11. Independent claims 1, 13, and 14 are reproduced with the terms that ZTE contends

emphasized: 

1. A processor for providing image data signalling to a projector, the image data 

signalling representing an image to be projected by the projector, the 

processor comprising:

an input to receive movement signalling associated with

movement of the projector; and

an output configured to provide image data signalling to the

projector, and wherein the processor is configured to

provide image data signalling to the projector based on

received movement signalling, wherein the movement

signalling provides an indication of one or more movement 

criterion of the projector, the movement criterion

representing one or more of displacement and movement 

speed of the projector, and wherein the processor is

configured to discriminate a movement criterion and to

provide associated image data signalling to project 

associated image data.

13. A method of providing image data signalling to a projector, the image data 

signalling representing an image to be projected by the projector, the 

method comprising:

receiving movement signalling associated with movement of the 

projector, and

providing image data signalling to the projector based on received 

movement signalling, wherein the movement signalling 

provides an indication of one or more movement criterion 

of the projector, the movement criterion representing one or 

more of displacement and movement speed of the 

projector, and wherein the processor is configured to

discriminate a movement criterion and to provide 

associated image data signalling to project associated 

image data.

14. A computer readable medium comprising computer program code configured 

to, when executed by one or more processors, cause an apparatus to 

perform at least:

receiving movement signalling associated with movement of a 

projector, and

to each term. WSOU reserves the right to address each of these groups in separate sections in its 

Reply.

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 16 of 27
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providing image data signalling to the projector based on received 

movement signalling, wherein the movement signalling 

provides an indication of one or more movement criterion 

of the projector, the movement criterion representing one or 

more of displacement and movement speed of the 

projector, and wherein the processor is configured to

discriminate a movement criterion and to provide 

associated image data signalling to project associated 

image data.

’071 patent, claim 1 (11:13−28) , claim 13 (12:22-34), claim 14 (12:35-48).

For all four groups of terms that ZTE contends are indefinite, the burden rests with ZTE to 

overcome the presumption of definiteness by clear and convincing evidence. It is unclear how ZTE 

maintains it can possibly meet its burden here, given ZTE has waived any reliance on expert 

testimony to support its position. See, e.g., Lecat’s Ventriloscope., 351 F. Supp. 3d at 1114; 

Spansion, 629 F.3d at 1344; Whirlpool, 2016 WL 7474517, at *3.

As with the terms in Section II.B.1 and II.B.2., ZTE also failed to provide any notice as to 

any indefiniteness theory for either of the two terms of the ’240 patent ZTE purports to challenge. 

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

above terms (among others). ZTE’s Invalidity Contentions dated Jan. 6, 2021, at 59-60 (Ex. A). 

As noted previously, ZTE introduced its bulleted list with the following conclusory and ambiguous 

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

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

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

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

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

four groupings of terms at issue here. 

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

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

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

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

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 17 of 27
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if its positions on indefiniteness, and in the absence of any expert testimony, the presumption 

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

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

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

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

WSOU submits that at least the following descriptions are relevant:

“the processor” / “wherein the processor is configured to”:

The processor 1 is an integrated circuit (specifically an Application Specific 

Integrated Circuit—ASIC) having an input 1a, an output 1b and a user interface 

connection1c. The input 1a is configured to be connected to the movement sensor 

3 and to receive movement signalling that is provided by the movement sensor 3. 

The output 1b is configured to be connected to the projector 2 and to provide image 

data signalling as an output signal. The image data signalling represents an image 

or images to be projected by the projector 2. The interface connection1c is an 

input/output connection that is to be connected to the user interface 4. This is 

configured to allow the user interface 4 to configure the processor 1 in a userdesired way.

The processor 1 also comprises further electrical input/output connections (not 

shown) that are configured to be connectable to a power Supply, memory for 

storing data (for images for example), user input/output such as a display or keypad 

etc (also not shown). It should be noted that whilst in this embodiment the processor 

1 is an ASIC, it may also be a general purpose central processing unit (CPU) that 

is configured to be able to perform a variety of other tasks (for example, a CPU in 

a hand-portable electronic device such as a mobile telephone, PDA, or the like), or 

the configured functionality may be provided by a plurality of separate integrated 

circuits. A computer readable medium (memory device) may be connected to or 

provided within a CPU embodiment of the processor 1 with computer program code

stored thereon for carrying out the method of the present invention.

’071 patent, 4:37−65.

“movement signalling” / “receiv[ing] movement signalling associated with the movement of

the projector” / “corresponding movement signalling”:

The processor 1 is configured to have an association between directional movement 

of the apparatus 100 (via said received movement signalling) and movement 

between image data representing the images to be projected. By this it is meant that 

the processor 1 will provide image data signalling for the next or previous image in 

the image set upon receiving movement signalling associated with Such an 

instruction. In this embodiment, an abrupt movement of the apparatus to the right 

causes an incremental (i.e. one image at a time) or continuous (i.e. smooth scrolling 

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 18 of 27
13

through the sequence of images) forward cycling through the image set whilst an 

abrupt movement of the apparatus to the left causes an incremental or continuous

backward cycling through the image set (relative to the Figures). Repeated abrupt 

movements may provide for corresponding continuous scrolling through the set.

Id. at 6:66−7:14.

“discriminate” / “discriminate a movement criterion” / “the processor is configured to 

discriminate a movement criterion”:

The user interface 4 is configured to be operable via the input/output area to control 

the configuration of the processor 1 via said connection 4c. By configuring the 

processor 1 to associate particular image data with a particular movement criterion 

represented/indicated by received movement signalling it is possible to 

tailor/customise the response of the processor 1 to respond in a particular way given 

a particular movement. This user interface 4 allows a user to customise the response 

of the processor 1.

* * *

In this embodiment, the processor 1 is configured to have associations between 

image(s) and corresponding movement criterion. This provides for a 

corresponding link between a detected movement criterion representing physical 

movement of the projector and an image represented by image data signalling. 

This means that, upon detection of a given movement criterion, the processor 1 

will provide the associated image data signalling to the projector 2 to project said 

image associated with the detected movement.

Id. at 5:34−43; 6:50-58.

“provide associated image data signalling to project associated image data”:

In this embodiment, the processor 1 is configured to have associations between 

image(s) and corresponding movement criterion. This provides for a corresponding 

link between a detected movement criterion representing physical movement of the 

projector and an image represented by image data signalling. This means that, upon 

detection of a given movement criterion, the processor 1 will provide the associated

image data signalling to the projector 2 to project said image associated with the 

detected movement.

Id. at 6:50−58.

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 19 of 27
14

IV. U.S. Patent No. 9,258,232(Case No. 6:20-cv-00495)

A. Overview of the ’232 Patent

The application that led to the issuance of the U.S. Patent No. 9,258,232 (“the ’232 patent”) 

was filed on January 27, 2012 and is a continuation of an application filed on October 18, 2007 

(and hence pre-AIA statutes apply). The ’232 patent generally “data packet communications 

systems, and in particular to controlling the flow of incoming data packets to data processing 

resources in such systems.” ’232 patent, 1:9-11. After acknowledging certain shortcomings in the 

existing technology, the ’232 patent recognized that “there is a need to provide ingress traffic flow 

control that gives precedence to high-priority traffic over low-priority traffic while minimizing 

unutilized ingress bandwidth.” Id. at 1:58-61.

B. Terms with Disputed Constructions

1. “flow control” (claims 1)5

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning “regulate movement of a series of data 

packets”

The term “flow control” should be accorded its plain-and-ordinary meaning and requires 

no construction for the following reasons.

First, the term “flow control” is a term of art. As noted, the plain and ordinary meaning of 

a term is the “meaning that the term would have to a person of ordinary skill in the art in question 

at the time of the invention.” Philips, 415 F.3d at 1313. The term’s status as a term of art is 

5

ZTE proposes grouping the term “flow control” with the term “instructions for execution by a 

traffic flow control system for performing flow control on a flow of data packets for transmission 

over a link.” WSOU believes that ZTE’s grouping violate OGP 3.2. While term “flow control” 

(which is recited separately in claim 1) is recited as part of the “instructions for execution ...” 

term, the latter term is only recited in claim 14. Moreover, WSOU understands that ZTE pursues 

completely different theories for these terms. For “flow control” in method claim 1, ZTE proposes 

the definition above. For the “instructions for execution ...” term in computer-readable-medium 

claim 14, ZTE claims that the term is subject to 35 U.S.C. §112(f) and indefinite. Accordingly, 

these two terms are not “same or similar terms” to be ordered together as required by OGP 3.2. If 

counted as two terms, ZTE would be beyond the limit authorized by the Court. See Email from R. 

Earle to Counsel of 02/26/21.

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 20 of 27
15

indicative by the specification’s introduction of the term “flow control” without explaining what 

that term means. For instance, the term “flow control” first appears in the Title. See ’232 patent at 

Title (“Ingress Traffic Flow Control in a Data Communications System”). The MPEP instructs 

Examiners that patent titles must be “brief but technically accurate and descriptive,” and instructs 

Examiners to require the substation of a new title that is “clearly indicative of the invention to 

which the claims are directed.” MPEP §§606, 606.01 (8th ed. Rev. 7 July 2008). The Examiner’s 

acceptance of the term “flow control” in the title demonstrates that the term is both “technically 

accurate” and “clearly indicative.” See id. Similarly, the term “flow control” is also recited in the 

first sentence of the Abstract. See ’232 patent at Abstract. “The purpose of the abstract is to enable 

the United States Patent and Trademark Office and the public generally to determine quickly from 

a cursory inspection the nature and gist of the technical disclosure.” 37 CFR §1.72. And an abstract 

should “sufficiently describe the disclosure to assist readers in deciding whether there is a need for 

consulting the full patent text for details.” MPEP §608.01(b) (8th ed. Rev. 7 July 2008). The term 

is then used in the specification without any explanation of what that term means. See, e.g., ’232

patent at 1:15; 1:21-23; 1:46-48; 1:58-61; 1:66; 26-28; 3:7-9. Accordingly, the term “flow control” 

undoubtedly has a plain and ordinary meaning. The absence of any definition in the Title, Abstract, 

and specification is further indicative that a POSITA would understand a plain and ordinary 

meaning for “flow control.” The Court need not construe this term.

Second, the surrounding claim language provides sufficient context for the term “flow 

control.” Claim 1 recites “[a] method performed by a traffic flow control system for performing -

flow control on a flow of data packets for transmission over a link.” Id. at at claim 1 (6:7-9).

Third, ZTE’s proposed construction is vague and unhelpful, and it should be rejected for 

improperly importing limitations not required in the claims or specification. Toshiba Corp. v. 

Imation Corp., 681 F.3d 1369 (Fed. Cir. 2012) (“Absent disclaimer or lexicography, the plain 

meaning of the claim controls.”). It is unclear the effect of the limitations of “regulate movement” 

and “series of data packets” in ZTE’s proposed construction. The Court should reject ZTE’s 

attempt to redraft the claim language, particularly in a manner that would only introduce 

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 21 of 27
16

ambiguity.

2. “transmission over a link” (claims 1 & 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under § 112(b)

As with the prior terms that ZTE contends are indefinite (see Sections II.B.1—2 and 

III.B.1—4, above), the “transmission over a link” term is presumptively definite. Each term, when 

read in light of the intrinsic evidence, presumptively informs one of skill in the art at the time of 

the invention “about the scope of the invention with reasonable certainty.” Nautilus, 572 U.S. at 

910−11. As noted above, the burden rests with ZTE to overcome the presumption of definiteness

by clear and convincing evidence. It is unclear how ZTE maintains it can possibly meet its burden 

here, given ZTE has waived any reliance on expert testimony to support its position. See, e.g., 

Lecat’s Ventriloscope., 351 F. Supp. 3d at 1114; Spansion, 629 F.3d at 1344; Whirlpool, 2016 WL 

7474517, at *3.

As with the terms in Section II, ZTE also failed to provide any notice as to any 

indefiniteness theory for either of the two terms of the ’240 patent ZTE purports to challenge. 

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

above terms (among others). ZTE’s Invalidity Contentions dated Jan. 6, 2021, at 59-60 (Ex. A). 

As noted previously, ZTE introduced its bulleted list with the following conclusory and ambiguous 

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

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

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

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

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

four groupings of terms at issue here. 

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

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

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 22 of 27
17

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

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

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

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

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

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

3. “period of congestion” (claims 1 & 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Lack of written description under 35 U.S.C. 

§112(a)

4. “rate limiting” (claims 1 & 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Lack of written description under 35 U.S.C. 

§112(a)

As with the terms in Section II.B.3. and II.B.4., ZTE errs as a matter of law in asserting 

written description as an issue properly raised during claim construction. They are not. As this 

Court instructed, “patent validity arguments like lack of enablement and lack of written description 

are not proper during claim construction proceedings.” USB Bridge, 2020 WL 1906898, at *5; 

accord Phillips, 415 F.3d at 1327 (“[W]e have certainly not endorsed a regime in which validity 

analysis is a regular component of claim construction.”)). As this Court recognized, the Eastern 

District of Texas has provided similar instruction. See, e.g., id.; Blue Calypso, 93 F. Supp. 3d at 

598 (“Because claim construction proceedings generally do not address written description 

challenges, Defendants’ ‘indefiniteness’ argument is hereby expressly rejected.”) (citing Phillips, 

415 F.3d at 1327).

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

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

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

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 23 of 27
18

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

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

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

Court should not condone ZTE’s behavior. 

5. “instructions for execution by a traffic flow control system for 

performing flow control on a flow of data packets for transmission 

over a link” (claim 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Governed by 35 U.S.C. § 112(f) 

Function: execution by a traffic flow control 

system for performing flow control on a flow of 

data packets for transmission over a link 

Indefinite under 35 U.S.C. § 112(b); 

Structure: none disclosed. 

ZTE’s erroneous means-plus-function construction of claim 14 runs afoul of several wellestablished claim construction canons. 

First, lack of the word “means” in claims 13 and 25 raises a rebuttable presumption against 

applying Section 112, ¶ 6. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015)

(en banc). While the burden lies with ZTE to rebut the presumption, it failed to advance any 

argument or evidence in its Invalidity Contentions (or in its disclosure of extrinsic evidence) as 

allegedly rebutting, or even addressing, the presumption against applying Section 112, ¶ 6 to claim

14, where the claim lacks the word “means.” 

Second, ZTE overlooks claim terms that connote structure to a person of ordinary skill in 

the art. The Federal Circuit reasoning in Zeroclick, LLC v. Apple Inc., 891 F. 3d 1003, 1007‒09 

(Fed. Cir. 2018) is instructive on this point. That opinion found the district court “legally erred by 

not giving effect to the unrebutted presumption against the application of § 112, ¶ 6,” and that the 

district court’s analysis was “couched in conclusory language” in concluding that “program” and 

“user interface code” were nonce words. Under Zeroclick, therefore, the words “program” and 

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 24 of 27
19

“code” are not properly considered per se nonce words in the context of the computing arts. Here, 

the claim language at issue is not purely functional, but rather recites specific structure that can 

perform respective tasks set forth in the body the claims. See Crossroads Sys., (Texas), Inc. v. 

Chaparral Network Storage, Inc., No. A 00 CA 217 SS, 2000 WL 35731852, at *4 (W.D. Tex. 

July 27, 2000) (“From a review of the claim language as a whole, the Court agrees with the plaintiff 

that the term ‘supervisor unit’ is not purely functional, but refers instead to a device that can 

perform the tasks specifically listed in the claim language of the ′972 patent.”); see also

Collaborative Agreements, LLC v. Adobe Systems Inc., Case No. A–14–CV–356–LY, 2015 WL 

2250391, *12‒*14 (W.D. Tex. 2015), denying reconsideration after transfer, Case No. 15-cv03853-EMC, 2015 WL 7753293, *4‒*8 (N.D. Cal. Dec. 2, 2015) (finding “code-segment” had 

sufficient structure to avoid being treated as a means-plus-function limitation). Claim 14 is directed 

to “[a] non-transitory machine-readable storage medium encoded with instructions for 

execution by a traffic flow control system for performing flow control on a flow of data packets 

for transmission over a link, the non-transitory machine-readable storage medium comprising” 

instructions for performing the tasks recited. 

Third, ZTE’s untethered interpretation (that the challenged claim language invokes Section 

112, ¶ 6 and fails to recite any structure) effectively seeks to undue decades of recognized patent 

law concerning Beauregard claims. In re Beauregard, 53 F.3d 1583 (Fed. Cir. 1995). United 

States patent law has long recognized a Beauregard claim as a patentable form of claiming a 

computer program, where the claim is directed to an article of manufacture—e.g., a computerreadable medium on which are encoded, typically, instructions for carrying out a process. Id. 

Here, the preamble of claim 14 recites “[a] non-transitory machine-readable storage medium

encoded with instructions for execution by a traffic flow control system for performing flow 

control on a flow of data packets for transmission over a link, the non-transitory machinereadable storage medium comprising.” The preamble is followed in the body of the claim 14 by 

a listing of executable “instructions” portions (which itself connotes structure). ZTE’s attempt to 

recast claim 14 as somehow invoking Section 112, ¶ 6 is a radical departure of established law, 

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 25 of 27
20

including authority of this district. For example, the Court found that “computer readable medium” 

was an article of manufacture and not a means-plus-function limitation. Collaborative Agreements, 

2015 WL 2250391, *12‒*14. The Court also observed (in that same opinion) that “systems claims 

[which] are essentially a method carried out on an apparatus by a computer-implemented software 

code contained on a storage device[,] as in the code-segment claims[,] [employ] a standard 

claiming technique that has been repeatedly upheld as definite.” Id. (collecting cases). 

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 26 of 27
21

Dated: March 12, 2021 Respectfully submitted,

By: /s/ Ryan 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 

Jeffrey Huang

Brian M. Koide

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 

Jhuang@EtheridgeLaw.com

Brian@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 12, 

2021.

/s/ James L. Etheridge

James L. Etheridge

Case 6:20-cv-00489-ADA Document 60 Filed 03/12/21 Page 27 of 27