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 REPLY CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 1 of 22
i

TABLE OF CONTENTS

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

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

Exhibits......................................................................................................................................... iv

Abbreviations .................................................................................................................................v

I. U.S. Patent No. 7,487,240 (Case No. 6:20-cv-00489).......................................................1

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

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

B. “a given containment hierarchy for the network” (claims 1, 6, and 13)...........3

II. U.S. Patent No. 8,147,071 (Case No. 6:20-cv-00492).......................................................4

A. ZTE Effectively Concedes Indefiniteness in in Parallel IPR 

Proceedings.............................................................................................................4

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

9, 13, and 14)...........................................................................................................5

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

with the movement of the projector” / “corresponding movement 

signalling” (claims 1, 9, 13, and 14)......................................................................7

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

is configured to discriminate a movement criterion” (claims 1, 13, 14)............8

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

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

III. U.S. Patent No. 9,258,232 (Case No. 6:20-cv-00495).....................................................10

A. “flow control” (claims 1) .....................................................................................10

B. “transmission over a link” (claims 1 & 14)........................................................11

C. “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) .........................................................................................12

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 2 of 22
ii

TABLE OF AUTHORITIES

Cases

Capital Sec. Sys., Inc. v. NCR Corp.,

725 F. App’x 952 (Fed. Cir. Mar. 7, 2018)................................................................................. 4

CloudofChange, LLC v. NCR Corp.,

6-19-CV-00513-ADA, 2020 WL 4004810 (W.D. Tex. July 15, 2020).............................. 10, 11

Collaborative Agreements,

Case No. A-14-CV-356-LY, 2015 WL 2250391 (collecting cases)........................................ 15

Cross Medical Products, Inc. v. Medtronic Sofamor Danek, Inc.,

424 F.3d 1293 (Fed. Cir. 2005)................................................................................................... 6

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

No. A 00 CA 217 SS, 2000 WL 35731852 (W.D. Tex. July 27, 2000) ................................... 14

Cypress Lake Software, Inc. v. Samsung Elecs. Am., Inc.,

382 F. Supp. 3d 586 (E.D. Tex. 2019).......................................................................... 12, 13, 14

Digital Retail Apps, Inc. v. H-E-B, LP,

6-19-CV-00167-ADA, 2020 WL 376664 (W.D. Tex. Jan. 23, 2020)...................................... 10

Energizer Holdings, Inc. v. Int'l Trade Comm'n,

435 F.3d 1366 (Fed. Cir. 2006)................................................................................................... 5

Enzo Biochem, Inc. v. Applera Corp.,

599 F.3d 1325 (Fed. Cir. 2010)................................................................................................... 4

Ericsson Inc. v. TCL Commc'n Tech. Holdings, Ltd.,

2:15-CV-00011-RSP, 2017 WL 5137401 (E.D. Tex. Nov. 4, 2017) ........................................ 5

Halliburton Energy Servs., Inc. v. M-I LLC, 

514 F.3d 1244 (Fed. Cir. 2008)................................................................................................... 6

In re Beauregard,

53 F.3d 1583 (Fed. Cir. 1995)................................................................................................... 15

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

572 U.S. 898 (2014).......................................................................................................... 1, 2, 10

Phillips v. AWH Corp.,

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

PPS Data, LLC v. Jack Henry & Associates, Inc.,

2:18-CV-00007-JRG, 2019 WL 1040742 (E.D. Tex. Mar. 4, 2019).......................................... 4

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 3 of 22
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S3 Inc. v. NVIDIA Corp.,

259 F.3d 1364 (Fed. Cir. 2001)......................................................................................... 6, 7, 11

SmithKline Beecham Corp. v. Apotex Corp.,

403 F.3d 1331 (Fed. Cir. 2005)............................................................................................. 8, 12

Zeroclick, LLC v. Apple Inc.,

891 F. 3d 1003 (Fed. Cir. 2018).......................................................................................... 14, 15

Statutes

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

Rules

37 CFR §1.72................................................................................................................................ 19

MPEP §608.01(b) (8th ed. Rev. 7 July 2008)............................................................................... 19

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 4 of 22
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Exhibits

Exhibit Description

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

B Email from Joshua J. Yi, Ph.D. to Counsel of 04/14/21.

C ZTE Corp. et. al v. WSOU Investments, LLC, IPR2021-00695, Paper 1, Petition for Inter 

Partes Review (filed Mar. 26, 2021).

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 5 of 22
v

Abbreviations1

Abbreviation Description

’071 Patent U.S. Patent No. 8,147,071

’232 Patent U.S. Patent No. 9,258,232

’240 Prosecution History U.S. Application Serial No. 10/820,111 (filed in -489 Case, Dkt. 

67-10)

’240 Patent U.S. Patent No. 7,487,240

Br. Plaintiff’s Opening Claim Construction Brief

IPR Inter Partes Review

OGP 3.3 Order Governing Proceedings – Patent Case Ver 3.3

POSITA Person of ordinary skill in the art

PTAB Patent Trial and Appeal Board

Resp. Defendants’ Responsive Claim Construction Brief

WSOU WSOU Investments LLC D/B/A Brazos Licensing and 

Development

ZTE Defendants ZTE Corporation, ZTE (USA) Inc. and ZTE (TX), 

Inc. 

1 Emphasis is added unless otherwise noted.

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 6 of 22
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I. U.S. Patent No. 7,487,240 (Case No. 6:20-cv-00489)2

A. “verifying connectivity in the network relating to at least Layer-2 and Layer3 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)

First, as a threshold matter, ZTE misstates the law regarding indefiniteness. For this term 

and throughout its Brief, ZTE relies on the Federal Circuit’s pre-Nautilus indefiniteness standard 

by stating that terms are “insolubly ambiguous.” Resp. at 7, 8, 13, 14, 16. As the Court is wellaware, the Supreme Court overruled the “insolubly ambiguous” standard 7 years ago. Nautilus, 

Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014) (“We conclude that the Federal Circuit's 

[insolubly ambiguous] formulation, which tolerates some ambiguous claims but not others, does 

not satisfy the statute's definiteness requirement.”). ZTE pays lip service to Nautilus (e.g., Resp. 

at 8), but its inconsistent and confusing invocation of both standards makes it impossible to 

determine which of two standards ZTE applies.

Second, ZTE argues that the “claims and specification fail to provide a meaning to what 

‘connectivity in the network relating to at least Layer-2 and Layer-3 objects.’” Id. at 7. ZTE also 

states that “the claims and the specification fail to provide sufficient support for ‘verifying’ said 

connectivity, as well as, verifying the connectivity to Layer 2 and Layer 3 objects.” Id. Because 

ZTE does not provide any explanation for these bald assertions and because ZTE relies on the preNautilus standard, ZTE has not adequately explained why the claims and specification “fail to 

provide a meaning” or “fail to provide sufficient support.” See id.

Moreover, because the terms “verifying” and “connectivity” are commonly understood in the field, 

a POSITA would understand the scope of this term with reasonable certainty. To the extent ZTE 

2

The Court has indicated that both written description (absent agreement) and enablement are not

properly part of the claim construction proceedings. Ex. B (Email from J. Yi. to Counsel of 

04/14/21). Accordingly, in this Reply, WSOU has not addressed in this Reply the terms that solely 

address these issues, i.e., terms in Sections II.B.3., II.B.4., IV.B.3, and IV.B.4. of WSOU’s 

Opening Brief.

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 7 of 22
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is suggesting that a claim term is indefinite because the claim language lacks express definitions 

of “verifying” or “connectivity,” that is not the law. Rather, the claim must be read “read in light 

of the specification delineating the patent, and the prosecution history,” and only found indefinite 

if the claims “fail to inform, with reasonable certainty” a POSITA. Nautilus, 572 U.S. at 901. Here, 

a POSITA would understand with reasonable certainty the claim language without any description 

in the specification. And here the specification avoids any doubt by describing an embodiment 

where the connectivity verification application 502 is described in the context of verifying 

connectivity in the network relating to Layer-2 and Layer-3 objects:

Subsequent to providing 632 connectivity verification results to the connectivity 

verification application 502. The connectivity verification application 502 uses the 

connectivity verification results and alarm information to display 640 and highlight 

Layer-2 (506) and Layer-3 (504) objects 40 affected by the alarm. The connectivity 

verification results may be interacted with 642 to cause the display 640 of Layer-2 

and Layer-3 objects associated with a particular connectivity verification job and/or 

connectivity verification test.

’240 patent at 9:36-44. The specification also describes at least two examples of connectivity 

verification jobs (ping and traceroute) in a preferred embodiment and examples of where the 

connectivity may be verified in a network. Id. at 10:66-11:42; id. at 15:25-42 (performing 

verification tests between “specified source and destination managed entities, “between routers 

and IP Interfaces,” “within VPNs,” and “between selected managed entities and unmanaged 

entities”). All these examples would enable a POSITA to understand the term with reasonable 

certainty.

Third, after noting that this term was introduced in an amendment, ZTE claims that the 

amendment was not “discussed.” Resp. at 8 (citing ‘240 Prosecution History at 272-88). This is 

not accurate. Rather, the record shows that the Applicants specifically addressed the amendment 

of “verifying connectivity in the network relating to at least Layer-2 and Layer-3 objects” in the 

prosecution history by discussing both the amendment itself and how the specification supported 

the amendment:

Exemplary elements of the invention defined by the examined claims 1, 6, and 14

include performing a connectivity verification capable of generating a 

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 8 of 22
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connectivity verification ....For purposes of expediting examination by simplifying 

issues, and without any disclaimer of claim scope or subject matter, Applicant[s]

respectfully amends the form of base claims 1, 6, and 14 to positively recite the 

verification test being capable, as is necessarily included in a proper interpretation 

of the examined claims 1, 6, and 14, of detecting connectivity in terms of Layer 2 

and Layer 3 objects of the network.... Enabling and descriptive support for all of 

the amended recital appears throughout Applicant[s’] originally filed 

specification, drawings and original claims including, but not limited to, FIG. 5, 

paragraphs [47]- [56], and original claims 1, 6, and 14.

’240 Prosecution History at 283-84.3 Thus, the Applicants specifically discussed the amended 

language and specifically identified the support for the amendment. These statements would 

further inform a POSITA as to the scope of the term with reasonable certainty.

B. “a given containment hierarchy for the network” (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) 

First, ZTE’s own arguments establish that plain and ordinary meaning should apply and 

that the term is not indefinite. Notably, ZTE concedes that the plain and ordinary meaning of 

“given” includes “particular” or “specified.” Resp. at 8 (conceding that the definition of “given” 

is “commonly understood”) (citing Merriam-Webster at 530). Ignoring that definition, ZTE then 

argues that “the claims provide no information as to what this term [i.e., ‘given’] means.” Resp. at 

8. But given ZTE’s concession that “given” is a “commonly understood” word, the Court need 

only apply that commonly understood definition. Phillips v. AWH Corp. 415 F.3d 1303, 1314 (Fed. 

Cir. 2005) (“[T]he ordinary meaning of claim language as understood by a person of skill in the 

art may be readily apparent even to lay judges, and claim construction in such cases involves little 

more than the application of the widely accepted meaning of commonly understood words.”). 

Thus, there is no need, as ZTE claims, for the claims to provide information on what “given” 

means because a POSITA would apply the “commonly understood” definition and the scope would 

be reasonably certain to the POSITA.

3 WSOU references to the ECF page number. ZTE appears to be citing the page count of the 

document without the Exhibit cover page.

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 9 of 22
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Second, ZTE attempts to make much of the fact that the verbatim phrase “given 

containment hierarchy” is not “used in the specification at any point.” Resp. at 9. But a term need 

not appear verbatim in the specification to avoid indefiniteness. See PPS Data, LLC v. Jack Henry 

& Associates, Inc., 2:18-CV-00007-JRG, 2019 WL 1040742, at *10 (E.D. Tex. Mar. 4, 2019)

(“Defendant emphasizes that the specification does not explicitly refer to a “central system,” but 

explicit use of the term at issue is not necessarily required.”); Capital Sec. Sys., Inc. v. NCR Corp., 

725 F. App’x 952, 956–57 (Fed. Cir. Mar. 7, 2018) (agreeing that “although the term ... does not 

appear verbatim in the specification, the term is not indefinite when considered in the context of 

the claims and the specification”). Applying the “commonly understood” meaning of “given,” a 

POSITA would understand its scope with reasonable certainty.

Third, applying the “commonly understood” meaning of “given” comports with the 

prosecution history. ZTE concedes indefiniteness by acknowledging a statement by the Applicants 

during prosecution that a “given containment hierarchy” is defined in the context of Layer-2 and 

Layer-3 objects. Resp. at 9. ZTE then goes onto complain that the prosecution history “provides 

no basis for what the specified containment hierarchy is in the claim other than it defines Layer 2 

and Layer 3 objects.” Id. But because “given” is a commonly understood word that is definite, 

there is no need for the prosecution history to further define the term. A POSITA would understand

this term with reasonable certainty.

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

A. ZTE Effectively Concedes Indefiniteness in in Parallel IPR Proceedings

In parallel proceedings, ZTE has petitioned for IPR review on anticipation grounds. Ex. C

(Petition for Inter Partes Review) at 8. ZTE concedes the weakness of its indefiniteness positions

before this Court by applying plain and ordinary meaning before the PTAB for the terms listed in 

II.B.-II.E. below. Id. at 7. A fundamental tenet of patent law holds that “[a] claim cannot be both 

indefinite and anticipated.” Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1332 (Fed. Cir. 

2010). And in filing its IPR petition, “the petition must specify where each element of the claim is 

found in the prior art patents or printed publications relied upon” 37 C.F.R. § 42.104(b)(4)

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 10 of 22
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(emphasis added). Thus, by filing an IPR Petition asserting anticipation grounds, ZTE effectively 

concedes that the below-listed disputed claim terms for the ’071 patent are not indefinite. 

B. “the processor” / “wherein the processor is configured to” (claims 1, 9, 13,

and 14)4

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

ZTE raises two distinct arguments regarding these grouping of terms.5

First, with respect to the term “the processor,” ZTE concedes that the term “the processor” 

is not indefinite in the context of claim 1. Resp. at 13-14 (noting that “[a] processor” is first recited 

in the preamble and “the processor” is subsequently recited). For claim 13, however, ZTE argues 

the term is indefinite due to a “lack of antecedent basis.” Id. at 14. But lack of antecedent basis for 

a term does not necessarily render a claim indefinite. Energizer Holdings, Inc. v. Int'l Trade 

Comm'n, 435 F.3d 1366, 1370 (Fed. Cir. 2006). Here, the intrinsic record would inform a POSITA

that the antecedent basis is implied. For instance, parallel independent claim 1 recites “processor 

for providing image data signalling to a projector.” ’071 patent at 11:13-14.6 In addition, the 

specification describes a “processor 1 in combination with the connected projector 2.” Id. at 4:29-

30; accord Abstract (“Described herein is processor for providing image data signalling to a 

projector.”); FIG. 1; 4:34-36 (“The apparatus 100 comprises the processor 1, projector 2, 

4 WSOU also objects to ZTE’s apparent attempt to change the disputed claim term. Resp. at 14 

(identifying term as “processor is configured to provide image data signalling to the projector 

based on received movement signalling” where ZTE has attempted to add the underlined 

language).

5

 ZTE only addressed independent claims 1 and 13 and failed to address independent claim 14.

Resp. at 13-14. ZTE has thus waived any arguments with respect to claim 14. Ericsson Inc. v. TCL 

Commc'n Tech. Holdings, Ltd., 2:15-CV-00011-RSP, 2017 WL 5137401, at *15 (E.D. Tex. Nov. 

4, 2017), rev'd on other grounds, 955 F.3d 1317 (Fed. Cir. 2020) (finding waiver when party did 

not assert theory in original responsive brief).

6

In its IPR Petition, ZTE concedes that “limitations of claim 13 are substantially similar to those 

of claim 1, except that claim 13 is a ‘method of’ performing the same functionality claimed in 

claim 1.” Ex. C at 36, 69. Thus, ZTE essentially concedes that antecedent basis in claim 13 should 

be implied to comport with claim 1.

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 11 of 22
6

movement sensor 3, user interface 4 and printed circuit board (PCB) 5.”). Here, the term in claim 

13 is not indefinite because the antecedent basis, while not express, is present by implication. 

Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008) (“a claim could 

be indefinite if a term does not have proper antecedent basis where such basis is not otherwise 

present by implication or the meaning is not reasonably ascertainable”); Cross Medical Products, 

Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1319 (Fed. Cir. 2005) (affirming summary 

judgment that claim reciting “said longitudinal axis” was not indefinite since Federal Circuit's 

correction of the district court's claim construction made clear that phrase implicitly referred to the 

longitudinal axis of a rod, and therefore the antecedent basis was present by implication).

Second, ZTE argues that the term “wherein the processor is configured to” is indefinite 

because the “claim fails to state how the processor is configured to ‘provide image data signalling 

... based on received movement signalling.’” Resp. at 14. But the “purpose of claims is not to 

explain the technology or how it works, but to state the legal boundaries of the patent grant.” S3 

Inc. v. NVIDIA Corp., 259 F.3d 1364, 1369 (Fed. Cir. 2001) (ruling claim term is not indefinite 

because “claims are not a self-contained explanation of every step ... [t]hat is not the role of 

claims.”). Moreover, “a claim is not ‘indefinite’ simply because it is hard to understand when 

viewed without benefit of the specification.” Id. Here, the specification explains that in an 

embodiment the “input 1a [of the processor] is configured to be connected to the movement sensor 

3 and to receive movement signalling that is provided by the movement sensor 3” and “output 1b 

[of the processor] is configured to be connected to the projector 2 and to provide image data 

signalling as an output signal.” With those portions of the specification and other intrinsic 

evicence, a POSITA would understand this term with reasonable certainty in view of the intrinsic 

evidence. See, e.g., Br. at 12 (citing ’071 patent at 4:37-65).

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 12 of 22
7

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

movement of the projector” / “corresponding movement signalling” (claims 

1, 9, 13, and 14)

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

With respect to claims 1, 13, and 14, ZTE argues these claims are indefinite because they 

“fail to recite what creates the movement signaling and only recite that something receives it.”

Resp. at 15. But, as noted above, it is not the role of a claim to be a self-contained explanation of 

every step. S3, 259 F.3d at 1369. Accordingly, there is nothing indefinite for claims 1, 13, and 14 

to only recite what is received and not recite what creates the “movement signalling.” Along the 

same lines, ZTE also errs by arguing that claims “fail to recite” the “movement sensor” recited in 

the specification. The Applicants were under no obligation to sweep in every limitation of a 

preferred embodiments into the claims. See S3, 259 F.3d at 1369 (“purpose of claims is not to 

explain the technology or how it works, but to state the legal boundaries of the patent grant”).

With respect to claim 9, ZTE concedes that claim 9 recites “what provides the movement 

signaling” (the movement sensor) but then attempts to cast claim 9 as “fail[ing] to inform with 

reasonable certainty what the claimed ‘corresponding movement signaling [sic]’ is provided to.” 

Resp. at 15. ZTE is wrong. The surrounding claim language of claim 9 itself recites “wherein the 

movement sensor is configured to provide corresponding movement signalling to the processor.”

’071 patent at 12:8-10. Even if “provided to” was lacking in the claim language (it is not lacking 

as noted in the prior sentence), the claim would not be indefinite as claims are not required to be 

self-contained units as ZTE would demand. See S3, 259 F.3d at 1369.

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 13 of 22
8

D. “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)

First, ZTE argues that these terms are indefinite because the claims “fail to recite what it 

means to discriminate.” Resp. at 15. Once again, ZTE rigidly implies that the claims themselves 

must expressly define the term—in this case “discriminate.” A POSITA would readily understand 

the meaning of “discriminate,” especially “in light of” the specification’s description of detecting 

a given movement criteria: 

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.

’071 patent, 6:50-58. A POSITA would understand that the ability to “detect[] a given movement 

criteria,” provides the ability to discriminate among different movement criteria. The specification 

also provides multiple examples of movement criteria. Id. at Figs. 2a-2c, 3a-3c, 4; id. at 7:15-34; 

8:26-9:27.

Second, ZTE argues that the claims “fail to state whether the processor receives code, 

analog signals, electrical signals, or some other communication—and if received, how it uses such 

communication data to discriminate anything.” Resp. at 16. As noted, however, the “purpose of 

claims is not to explain the technology or how it works, but to state the legal boundaries of the 

patent grant. S3, 259 F.3d at 1369. And with respect to ZTE’s argument that the claims must recite 

a particular method to “discriminate” (e.g., receive code, analog signals, etc.), ZTE is also 

confusing breadth with indefiniteness. SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 

1341 (Fed. Cir. 2005) (“[B]readth is not indefiniteness.”). Notably, ZTE does not claim that a 

POSITA reading the claims in light of the specification would not understand the scope of 

“discriminate” with reasonable certainty. Instead, as noted above, ZTE merely argues that the 

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 14 of 22
9

claims are not restricted to one particular way of “how the processor discriminates.” Resp. at 16.

That is an issue that relates to breadth of the claim, not indefiniteness.

E. “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)

ZTE wrongly asserts that this term is indefinite because claims 1, 13, and 14 “fail to recite 

to what the image data signaling [sic] and image data is associated with.” Resp. at 16 (emphasis 

in original). But ZTE ignores the surrounding claim language. 

Claims 1, 13, and 14 each recite: 

wherein the processor is configured to discriminate a movement criterion and to 

provide associated image data signalling to project associated image data.

’071 patent at claim 1 (11:25-28); claim 13 (12:31-34); claim 14 (12:45-48). As evident from the 

syntax and context of surrounding claim language, the “associated image data signalling” and

“associated image data” are “associated” with the movement. 

Moreover, in light of the specification, a POSITA would further confirm his understanding 

that the “associated image data signalling” and “associated image data” are associated with the 

movement:

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.

’240 patent, 6:50−58.

Indeed, ZTE acknowledges that the specification provides the association to movement, 

but then suggest that the claims should be read in a vacuum without the benefit of the specification. 

Resp. at 16 (“Without further explanation [of the specification], the claims is ambiguous as to what 

is means to provide ‘associated image data signaling’ [sic] or ‘to project associated image data.’”). 

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 15 of 22
10

ZTE’s approach directly contradicts the Supreme Court’s mandate that the claims must be read 

“read in light of the specification.” Nautilus, 572 U.S. at 901. Even if the claims were unclear in a 

vacuum (they are not as explained above), ZTE’s concession that the specification teaches that 

“associated” refers to movement establishes that the claims are not indefinite

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

A. “flow control” (claims 1)7

WSOU’s Proposed Construction Defendant’s Proposed Construction

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

packets”

ZTE attempts to fault WSOU for not affirmatively proposing a definition for the plain and 

ordinary meaning of “flow control.” Resp. at 18. The only support ZTE cites is a single case from 

the District of New Jersey. This Court, however, frequently construes claim terms as its plain and 

ordinary meaning that a person of ordinary skill in the art would ascribe to it and without further 

defining that plain and ordinary meaning. E.g., CloudofChange, LLC v. NCR Corp., 6-19-CV00513-ADA, 2020 WL 4004810, at *4 (W.D. Tex. July 15, 2020) (construing “vendor’s remote 

servers” is the “plain and ordinary meaning that a person of ordinary skill in the art would ascribe 

to it.”); Digital Retail Apps, Inc. v. H-E-B, LP, 6-19-CV-00167-ADA, 2020 WL 376664, at *3 

(W.D. Tex. Jan. 23, 2020) (construing “user of the retailer device,” “verifying,” “currently 

unavailable for purchase,” “transmitting to the electronic device the goods or services purchased 

by the consumer,” and “displaying on the electronic device the goods or services purchased” each 

“be given their plain and ordinary meaning that a person of ordinary skill in the art would ascribe 

to it.”). ZTE’s reliance on the New Jersey case conflicts with this Court’s settled practice.

7

WSOU noted why “flow control” and “instructions for execution by a traffic flow control system 

for performing flow control on a flow of data packets for transmission over a link” are not “same 

or similar terms” to be ordered together as required by OGP 3.2. Br. at 14 n.5. 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 69 Filed 04/23/21 Page 16 of 22
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With respect to “series of data packets” in ZTE’s proposed construction, that language is 

superfluous of the surrounding claim language which recite “[a] method performed by a traffic 

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

a link.” ’232 patent at claim 1 (6:7-9). For the balance of ZTE’s construction, ZTE has offered no 

principled reason why it is necessary to replace the term “flow control” with “regulate movement.” 

ZTE concedes that a POSITA “would have understood” the term. Resp. at 18. And this is not a 

situation (and ZTE does not allege) where the term is a “difficult technical term[] for which a 

construction would help the jury understand the meaning of the term.” CloudofChange, 2020 WL 

4004810, at *2 (citing Kroy IP Holdings, LLC v. Safeway, Inc., No. 2:12-cv-800-WCB, 2014 WL 

3735222, at *2 (E.D. Tex., July 28, 2014)).

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

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Indefinite under § 112(b)

ZTE wrongly argues that the term “transmission over a link” is indefinite because 

“[n]either the claims nor the specification describe what is the claimed ‘link’ does or what the link

connects.” Resp. at 22. 

First, the claims need not specify what the link “does” or “connects” because the “purpose 

of claims is not to explain the technology or how it works, but to state the legal boundaries of the 

patent grant.” S3, 259 F.3d at 1369. ZTE complains that the specification describes a “more 

elaborate” system than what is recited in independent claims 1 and 14). Resp. at 22. But just 

because a specification provides more detail than the claims does not make any claims lacking that 

detail indefinite.

Second, ZTE fails to acknowledge that a POSITA would reasonably understand the term 

“transmission over a link” both in the context of the claim language and “in light of” the 

specification. ZTE even acknowledges that the specification “elaborate[s]” that the “link of 

exemplary claim 1 is a ‘serial link’” but complains that “there is no discussion of what the serial 

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 17 of 22
12

link might be or what it connects to.” Id. (citing ’232 patent at 2:1-4, 2:20-24). Ultimately, ZTE 

confuses breadth with indefiniteness. SmithKline., 403 F.3d at 1341 (“[B]readth is not 

indefiniteness.”). Notably, ZTE does not claim that a POSITA reading the claims in light of the 

specification would not understand the scope of “transmission over a link.” 

C. “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 argues that this term is subject to §112(f) because the term “instructions” is a “nonce 

word that recites no structure by itself.” Resp. at 19. 

First, ZTE errs by focusing merely on the word “instructions” in isolation “by itself.” See 

id. In examining an analogous claim term, the Eastern District of Texas found that the term 

“instructions to” was not indefinite. Cypress Lake Software, Inc. v. Samsung Elecs. Am., Inc., 382 

F. Supp. 3d 586, 643 (E.D. Tex. 2019), reconsideration denied, 6:18-CV-30-JDK, 2019 WL 

4935280 (E.D. Tex. Aug. 23, 2019). In particular, the Cypress court reasoned that “whether 

recitation of ‘instruction’ performing a function is governed by § 112, ¶ 6 depends on whether the 

stated objectives and operation of the code connote sufficiently definite structure.” Id. (citing 

Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1319-21 (Fed. Cir. 2004) (finding that 

“circuit [for performing a function]” was sufficiently definite structure because the claim recited 

the “objectives and operations” of the circuit)). In focusing on these “objectives and operations,”

the Cypress court highlighted the recitation in the claims of structure that “execute the recited 

instructions” (a processor in the Cypress case) and also noted that the “claims further describe the 

structural interactions among” various structural components. Cypress, 382 F. Supp. 3d at 643.

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 18 of 22
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Based on these objectives and operations, the Cypress court held that “a POSITA would 

understand that the claim language recites sufficient structure and that the term ‘instructions’ is 

not used as a generic term or black box recitations of structure or abstractions.” Id. (citing

Zeroclick, LLC v. Apple Inc., 891 F.3d 1003, 1007-09 (Fed. Cir. 2018) (“[A] person of ordinary 

skill in the art could reasonably discern from the claim language that the words ‘program,’...and 

‘user interface code,’...are used not as generic terms or black box recitations of structure or 

abstractions, but rather as specific references to conventional graphical user interface programs or 

code, existing in prior art at the time of the inventions.”)). Notably, the Cypress court correctly 

looked at the claim language holistically. Id. (“the claim language recites sufficient structure”). 8

Here, similar to the processor that executed instructions in Cypress, claim 14 recites a 

“traffic flow control system” that executes the instructions. ’232 patent at claim 14 (7:35-36)

(“instructions for execution by a traffic flow control system”). The “traffic flow control system 

10” is depicted in the specification as structure. Id. at 3:7-29; FIG. 1. Also, just as in Cypress, 

claim 14 recites other structural components including a “link,” “non-transitory machine-readable 

storage medium,” and a “controller.” Id. at 7:37-42. These structural components are also 

described and depicted as structural. ’232 patent at 3:7-29; FIG. 1. Thus, the correct approach is 

to look at these “objectives and operations” of the claim as a whole, and not, as ZTE proposes, to 

focus solely on whether “instructions” connotes sufficient structure “by itself.” See Resp. at 19.

8 ZTE also cites to Cypress suggesting that the district court found § 112(f) applicable to a different 

term (“code for”) merely based on that term itself. Resp. at 21 (citing Cypress, 382 F. Supp. 3d at 

614) (ZTE describing in the parenthetical “finding that recitations of ‘code for’ is governed by 35 

U.S.C. § 112(f)”). But contrary to ZTE’s simplistic description of the holding, the Cypress court’s 

holding did not depend on that phrase “code for” itself. Cypress, 382 F. Supp. 3d at 615. Rather, 

the Cypress court applied the very same “objectives and operations” analysis as it did with 

“instructions to.” Id. Under that analysis, the court found that the “surrounding claim language [of 

the claims with ‘code for’] does not identify any specific structure of ‘code’ to perform the recited 

function.” Id. This is not the case here as described above. Moreover, specification in Cypress

expressly equated “code for” and “means for” by using the same functional language as in the 

claims except that the specification recites “means for” performing those functions, whereas the 

claims recite “code for” doing so. Id. Here, the specification lacks any reference to “means.” Thus, 

the Cypress court’s analysis of “code for” is inapposite, while its analysis of “instructions to” is 

on point for the reasons noted above. 

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 19 of 22
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The Cypress court’s analysis comports with this Court’s precedent. Br. at 19 (citing 

Crossroads Sys., (Texas), Inc. v. Chaparral Network Storage, Inc., No. A 00 CA 217 SS, 2000 

WL 35731852, at *4 4 (W.D. Tex. July 27, 2000)). In particular, this Court in Crossroads opined:

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. Specifically, claims 1, 2 and 10 of the ′972 patent describe a “supervisor 

unit” that can: (1) maintain and map the configuration of networked Fibre Channel 

and SCSI storage devices; (2) include in this configuration an allocation of specific 

storage space to specific Fibre Channel devices; (3) implement access controls for 

the SCSI storage devices; and (4) process data in the storage router's buffer to allow 

an exchange between the Fibre Channel and SCSI storage devices.

Crossroads, No. A 00 CA 217 SS, 2000 WL 35731852, at *4.

ZTE attempts to distinguish Crossroads by omitting the “claim language as a whole”

language from the opinion and the Court’s discussion of structure in the surrounding claim 

language. ZTE’s reliance on its “by itself” approach conflicts with the “claim language as a whole” 

analysis of Crossroads.

Second, ZTE attempts to distinguish prior precedent finding that the recitation of “code” 

or “program” to not invoke § 112(f). ZTE attempts to do so by distinguishing the term at issue 

here ( “instructions”) from “code” or “program.” Resp. at 19. ZTE, however, provides no evidence

for its purported distinction and instead resorts to attorney argument. See id. ZTE’s attempt to 

distinguish between “instructions” and “code/program” also reveals the flaw in its myopic, “by 

itself” approach of focusing only on the word “instructions” in isolation without an understanding 

of the “objectives and operations” of the claim as a whole. See Cypress, 382 F. Supp. 3d at 643.

Accordingly, even if ZTE had proved that a POSITA would appreciate a meaningful difference 

between “instructions” (on the one hand) and “code” or “program” (on the other hand), that 

difference does not in and of itself resolve whether § 112 (f) applies to the facts here. 

Third, ZTE fails to adequately distinguish Zeroclick, LLC v. Apple Inc., 891 F. 3d 1003, 

1007‒09, (Fed. Cir. 2018), which WSOU cited in its Opening Brief. Br. at 19-20. ZTE argues that 

Zeroclick is distinguishable because the Federal Circuit determined that POSITA could 

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 20 of 22
15

“reasonably discern from the claim language that the words ‘program,’ and ‘user interface code,’ 

were used not as generic terms or black box recitations of structure or abstractions, but rather as 

specific references to conventional graphical user interface programs or code, existing in prior art 

at the time of the invention.” Br. at 20 (citing Zeroclick,891 F.3d at 1008). But while ZTE 

accurately quoted the Zeroclick opinion, it provides no evidence to support a finding that POSITA 

would “reasonably discern from the claim language” that “instructions for” language is merely a 

black box or generic term. And as noted above, under the correct “objectives and operations” 

holistic approach, a POSITA would view “instructions for” as structure given the surrounding 

claim language and specification.

Third, ZTE failed to address that claim 14 is recited as a Beauregard claim, which has long 

been recognized as a patentable form of claiming a computer program, where the claim is directed 

to an article of manufacture—e.g., a computer-readable medium on which are encoded, typically, 

instructions for carrying out a process. In re Beauregard, 53 F.3d 1583 (Fed. Cir. 1995). ZTE does 

not dispute WSOU’s assertion that Beauregard claims have long been recognized. Compare Br. 

at 19-20 with Resp. at 19-21. Nor does ZTE address this Court’s holding that “computer readable 

medium” was an article of manufacture and not a means-plus-function limitation. Compare Br. at 

19-20 (citing 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-cv-03853-EMC, 2015 WL 7753293, *4-*8 (N.D. Cal. Dec. 2, 2015)) with Resp. at 19-21. As 

this Court noted, “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.” 

Collaborative Agreements, Case No. A-14-CV-356-LY, 2015 WL 2250391, at *12‒*14

(collecting cases). ZTE has remained silent and utterly failed to address this point.

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 21 of 22
16

Dated: April 23, 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 April 23, 

2021.

/s/ Ryan Loveless

Ryan Loveless

Case 6:20-cv-00489-ADA Document 69 Filed 04/23/21 Page 22 of 22