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.

DELL TECHNOLOGIES INC., DELL INC., 

EMC CORPORATION, AND VMWARE, 

INC.,

Defendants.

Case No. 6:20-cv-00480-ADA

Case No. 6:20-cv-00481-ADA

Case No. 6:20-cv-00485-ADA

Case No. 6:20-cv-00486-ADA

JURY TRIAL DEMANDED

DEFENDANTS’ CLAIM CONSTRUCTION SUR-REPLY BRIEF

REGARDING U.S. PATENT NOS. 7,092,360; 7,539,133; 7,636,309; AND 9,164,800

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 1 of 26
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TABLE OF CONTENTS

Page

I. INTRODUCTION ...............................................................................................................1

II. U.S. Patent No. 7,092,360 (Case No. -486).........................................................................1

A. “said element comprises: an element for recording whether a queue is 

empty or occupied, an element for recording the [number of data 

cells/quantity of data] contained in a queue, an element identifying a queue 

from which data is to be output, and an element identifying a group of 

queues from which data is to be output” (Claims 1 and 26) .....................................1

B. “expected state for said element”; “predetermined state for said element”; 

“expected value of said parameter”; “expected states for that element”; 

“expected status for said element”; “expected state of said first element” 

(Claims 1, 3, 12, 13, 18, 21, 24, 26, 28, 29, 48, and 49) ...........................................2

C. “computer generated model” (Claims 1, 18, 21, 26, 44, and 45)..............................3

D. “means for . . .” terms................................................................................................4

1. “detection means for detecting a state of an element” (Claims 1 and 18).........4

2. “comparing means for comparing the detected state with a predetermined 

state for said element and for outputting the result of the comparison” 

(Claims 1 and 24)...............................................................................................5

3. “determining means for determining an expected value of said parameter” 

(Claim 18)..........................................................................................................6

E. “element . . .” or “element for . . .” terms..................................................................7

III. U.S. Patent No. 7,539,133 (Case No. -480).......................................................................11

A. “whether a congestion condition exists [on/for] the egress node” (Claims 1, 

12, and 13)...............................................................................................................11

B. “processing the packets” (Claims 1, 12, and 13).....................................................12

C. “such that packets associated with egress nodes for which the congestion 

condition does not exist have a different queuing priority within the load 

balancing network than packets associated with egress nodes for which the 

congestion condition exists” (Claims 1, 12, and 13)...............................................14

D. “means for determining, for each packet, whether a congestion condition 

exists on the egress node” (Claim 12).....................................................................15

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 2 of 26
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E. “means for processing the packets such that packets associated with egress 

nodes for which the congestion condition does not exist have a different 

queuing priority within the load-balancing network than packets associated 

with egress nodes for which the congestion condition exists” (Claim 12) .............16

IV. U.S. Patent No. 7,636,309 (Case No. -485).......................................................................17

A. “split ratio vector” (Claims 1, 11, and 16) ..............................................................17

V. U.S. Patent No. 9,164,800 (Case No. -481).......................................................................17

A. “latency cost” (Claims 1, 13) ..................................................................................17

B. “[determining/determine] an assignment objective” (Claims 1, 13).......................19

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 3 of 26
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TABLE OF AUTHORITIES

Page(s)

CASES

Absolute Software, Inc. v. Stealth Signal, Inc.,

659 F.3d 1121 (Fed. Cir. 2011)................................................................................................12

Augme Techs., Inc. v. Yahoo! Inc.,

755 F.3d 1326 (Fed. Cir. 2014)..........................................................................................15, 17

CIAS, Inc. v. All. Gaming Corp.,

504 F.3d 1356 (Fed. Cir. 2007)..................................................................................................1

Dixon v. Toyota Motor Credit Corp.,

794 F.3d 507 (5th Cir. 2015) .................................................................................................4, 7

ePlus, Inc. v. Lawson Software, Inc.,

700 F.3d 509 (Fed. Cir. 2012)....................................................................................................4

GPNE Corp. v. Apple Inc.,

830 F.3d 1365 (Fed. Cir. 2016)................................................................................................14

Homeland Housewares, LLC v. Whirlpool Corp.,

865 F.3d 1372 (Fed. Cir. 2017)..................................................................................................3

Net MoneyIN, Inc. v. VeriSign, Inc.,

545 F.3d 1359 (Fed. Cir. 2008)................................................................................................16

NNPT LLC v. Huawei Inv. & Holding Co.,

No. 2:14–CV–677–JRG–RSP, 2015 WL 4911846 (E.D. Tex. Aug. 17, 2015) ........................2

Oatey Co. v. IPS Corp.,

514 F.3d 1271 (Fed. Cir. 2008)................................................................................................19

Power-One, Inc. v. Artesyn Techs., Inc.,

599 F.3d 1343 (Fed. Cir. 2010)..................................................................................................1

RideApp Inc. v. Lyft, Inc.,

--- F. App’x ---, 2021 WL 1141320 (Fed. Cir. Mar. 25, 2021) .............................................5, 6

Robert Bosch, LLC v. Snap-On Inc.,

769 F.3d 1094 (Fed. Cir. 2014)................................................................................................17

SunRace Roots Enterprise Co. v. SRAM Corp.,

336 F.3d 1298 (Fed. Cir. 2003)................................................................................................14

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 4 of 26
TABLE OF AUTHORITIES (continued)

Page(s)

iv

Via Vadis, LLC v. Blizzard Entm’t, Inc.,

815 F. App’x 539 (Fed. Cir. 2020) ............................................................................................7

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)..................................................................................................5

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 5 of 26
I. INTRODUCTION

Instead of grappling with the claims and intrinsic record in accord with controlling claim 

construction precedent, WSOU continues to offer no more than conclusory, internally inconsistent,

and legally incorrect arguments. Notably, WSOU backtracks or takes entirely new positions on 

numerous claim terms, including as to “means for” terms and their corresponding structure, which

WSOU had, up until its Reply brief, baselessly argued should not be analyzed under 35 U.S.C. 

§ 112, ¶ 6. WSOU’s continuously shifting positions reflect the lack of merit to its arguments.

II. U.S. Patent No. 7,092,360 (Case No. -486)

A. “said element comprises: an element for recording whether a queue is empty 

or occupied, an element for recording the [number of data cells/quantity of 

data] contained in a queue, an element identifying a queue from which data is 

to be output, and an element identifying a group of queues from which data is

to be output” (Claims 1 and 26)

Defendants’ Proposal WSOU’s Proposal

“said element includes all of: an element for recording whether a queue 

is empty or occupied, an element for recording the quantity of data 

contained in a queue, an element identifying a queue from which data is 

to be output, and an element identifying a group of queues from which 

data is to be output”

Plain and ordinary 

meaning

WSOU does not dispute in either of its briefs that the plain language of the claims requires 

that “said element comprises”—i.e., includes—all of the four named elements that follow. DefBr.

2–3; see also id. at 2 n.2 (amendments from prosecution). WSOU merely repeats its argument that 

claim 1 recites “number of data cells” and claim 26 recites “quantity of data,” but never explains 

why this is relevant to what “said element comprises” means. ReplyBr. 1. Although in patent law 

“comprises” indisputably means “including but not limited to,” the jury cannot be expected to 

know that. CIAS, Inc. v. All. Gaming Corp., 504 F.3d 1356, 1360–61 (Fed. Cir. 2007). Thus, 

Defendants’ construction should be adopted to “ensure that the jury fully understands . . . what the 

patentee covered by the claims.” Power-One, Inc. v. Artesyn Techs., Inc., 599 F.3d 1343, 1348 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 6 of 26
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(Fed. Cir. 2010); NNPT LLC v. Huawei Inv. & Holding Co., No. 2:14-CV-677-JRG-RSP, 2015 

WL 4911846, at *6 (E.D. Tex. Aug. 17, 2015) (construing term because it would “assist the jury 

to understand the claims,” despite the plaintiff’s argument that “no construction is necessary”).

B. “expected state for said element”; “predetermined state for said element”; 

“expected value of said parameter”; “expected states for that element”; 

“expected status for said element”; “expected state of said first element” 

(Claims 1, 3, 12, 13, 18, 21, 24, 26, 28, 29, 48, and 49)

Defendants’ Proposal WSOU’s Proposal

“a [state/value] for the [element/parameter] that would be 

expected if the scheduler is functioning properly”

Plain and ordinary meaning

WSOU fails to substantively address the specification’s repeated and exclusive disclosure 

confirming the patent’s purpose and focus of determining if a scheduler is “functioning properly.” 

DefBr. 3–5. Instead, WSOU simply dismisses it with three flawed arguments. ReplyBr. 1–3.

First, WSOU again attempts to differentiate between claims 1 and 3 on the basis that claim 

3 recites “parameter.” ReplyBr. 1–2. But as Defendants have explained, their construction is 

focused on the “predetermined state of said element” (claim 1) and “expected state of said 

element” (claim 3)—not claim 3’s separately claimed “parameter.” DefBr. 5. WSOU fails to 

explain why this “parameter” has any effect on the claim construction question at hand: whether, 

as the specification confirms, the “expected state” and “predetermined state” of an “element” refers 

to whether the scheduler is “functioning properly.” Moreover, WSOU’s argument does not 

address the other claims at issue, i.e., independent claims 18, 21, 24, and 26.

Second, WSOU argues that the patent’s discussion of a rule checker comparison (at 7:28–

43) is a “counterexample” to Defendants’ construction. ReplyBr. 2. But this passage does not

contradict the specification’s repeated disclosure about the claims’ focus of determining if a 

scheduler is “functioning properly.” DefBr. 3–4. Instead, the passage (at 7:40–43) only further

confirms this purpose, stating that the rule checker checks “whether the test” of the scheduler “is 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 7 of 26
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passed or failed”; in other words, if the scheduler passes the test, it is functioning properly. 

Third, WSOU tries to distinguish certain language in the claims at issue in Homeland 

Housewares, LLC v. Whirlpool Corp., 865 F.3d 1372 (Fed. Cir. 2017). ReplyBr. 3. WSOU misses 

the point. Defendants rely on Homeland only for its articulation of settled law: where, as here, “a 

patentee uses a claim term throughout the entire patent specification, in a manner consistent with 

only a single meaning, he has defined that term by implication.” 865 F.3d at 1377; DefBr. 3–5.

C. “computer generated model” (Claims 1, 18, 21, 26, 44, and 45)

Defendants’ Proposal WSOU’s Proposal

“a simulated computer model of circuitry describing a scheduler” Plain and ordinary meaning

WSOU fails to substantively address the specification’s consistent and repeated disclosure 

that resolves the claims’ ambiguity about what the recited “computer generated model” represents, 

and ignores that Defendants’ construction is taken verbatim from this disclosure. DefBr. 5–7. 

WSOU’s two arguments only further confirm why this clarification is necessary.

First, relying on only two lines from claim 1, WSOU argues that Defendants “overlook[] 

surrounding language, which limits the ‘model’ in terms of what it must provide,” stating that the 

model provides the “status of said element to said monitor.” ReplyBr. 3. But WSOU’s argument 

about information that the model might provide to the monitor says nothing about and fails to 

resolve the claims’ ambiguity about what the model itself represents in the first place, i.e., a 

“simulated computer model of circuitry describing a scheduler.”

Second, WSOU argues that Defendants’ construction is not consistent with claim 44, which 

recites that the “computer generated model comprises a file containing a functional description,” 

and claim 45, which recites that the “computer generated model is described in a programming 

language.” ReplyBr. 3–4. But these additional limitations merely relate to what the model 

includes (cl. 44) and how it is described (cl. 45)—not what the model itself represents. WSOU 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 8 of 26
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fails to explain why, if the model is a “simulated computer model of circuitry describing a 

scheduler” as the specification states, the model cannot include these additional characteristics.

D. “means for . . .” terms

WSOU finally agrees—as it must—that 35 U.S.C. § 112, ¶ 6 applies to these “means” 

terms. ReplyBr. 4–5. Yet, with no explanation, WSOU has changed its position on corresponding 

structure. In its opening brief, WSOU stated that if these “means” terms are “deemed subject to 

35 U.S.C. § 112, ¶ 6, then” the structure is “monitor having the claimed functionality.” PlBr. 6, 8, 

10. But now, for the first time on reply, WSOU identifies new purported structure. ReplyBr. 5.

WSOU’s continuously shifting positions demonstrate only that its arguments lack any merit. 

WSOU’s new arguments are also waived.1 Dixon v. Toyota Motor Credit Corp., 794 F.3d 507, 

508 (5th Cir. 2015) (“Arguments raised for the first time in a reply brief are waived.”).

1. “detection means for detecting a state of an element” (Claims 1 and 18)

Defendants’ Proposal WSOU’s Revised Proposal

This term is subject to 35 U.S.C. § 112, ¶ 6

Function: detecting a state of an element

Structure: modules 110, 112, 114 

. . . to 130 using a programming 

language interface (PLI) as 

described in ’360 patent, 12:11–41

Prior Structure: monitor having the claimed 

functionality

New Structure: module 110, 112, 114, 115, 118, 120, 

122, 124, 126, 128, or 130

WSOU now agrees to the recited function and that modules 110, 112, 114 . . . to 130 are 

corresponding structure. ReplyBr. 5. But WSOU tries to broaden the claims by arguing that the 

corresponding structure does not include the modules using a programming language interface 

1 WSOU also argues that, for some of these terms and those in Section II.E, Defendants waived 

the argument that “a means-plus-function construction for this term would allegedly require 

algorithmic structure.” E.g., ReplyBr. 6–12 nn.1–6. That is simply incorrect. “Structure” 

includes, for example, “using a particular piece of hardware, employing a specific source code, or 

following a particular algorithm.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 519 (Fed. 

Cir. 2012). Defendants made clear that the “specification lacks any [such] structure that performs 

the recited function,” and thus did not waive what the legal framework requires. DefBr. 13.

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 9 of 26
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(PLI), as described at 12:11–41, to perform the recited “detecting” function. Id. at 5–6.

The Federal Circuit has made clear that a “module” itself “is a well-known nonce word,” 

a “black box,” “simply a generic description for software or hardware that performs a specified 

function,” and “typically do[es] not connote sufficiently definite structure.” Williamson v. Citrix 

Online, LLC, 792 F.3d 1339, 1350 (Fed. Cir. 2015). The court also has repeatedly made clear that 

disclosure of corresponding structure must not only “clearly link” the structure to the recited 

function, but also explain and “limit . . . how” it performs the recited function. RideApp Inc. v. 

Lyft, Inc., --- F. App’x ---, 2021 WL 1141320, at *3–4 (Fed. Cir. Mar. 25, 2021).

Here, the specification’s only disclosure about how these black-box modules perform the 

recited “detecting” function is at 12:11–14, which states that the “programming language interface 

(PLI)” “enable[s]” “detect[ion of] the status and/or operations” of the “elements of the scheduler,” 

and “may be instructed to retrieve information concerning” their “status” by “calling a file 

defining the PLI tasks.” DefBr. 10–11. WSOU’s only response is that the passage uses the word 

“may,” and thus a PLI is not “always ‘necessary’ to perform the claimed function.” ReplyBr. 5–

6. But WSOU identifies no disclosure explaining how the modules perform the recited function 

without a PLI. Thus, because the only disclosure about how these modules perform the “detecting” 

function is by using a PLI, the corresponding structure must include using a PLI. Otherwise, if the 

structure is simply the black-box modules as WSOU proposes, this “means” term is indefinite.

2. “comparing means for comparing the detected state with a 

predetermined state for said element and for outputting the result of 

the comparison” (Claims 1 and 24)

Defendants’ Proposal WSOU’s Revised Proposal

This term is subject to 35 U.S.C. § 112, ¶ 6

Function: comparing the detected state with a predetermined state for said element and for 

outputting the result of the comparison

Structure: Indefinite Prior Structure: monitor having the claimed functionality

New Structure: rule checker 132

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 10 of 26
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WSOU now agrees to the recited function, but rather than admit the term is indefinite it 

argues the corresponding structure is rule checker 132. ReplyBr. 6. WSOU’s alleged support (Id.

at 6–7) never “clearly links” rule checker 132 to the specific recited function or explains “how it 

does so.” RideApp, 2021 WL 1141320, at *3; DefBr. 13. At best, WSOU’s citation to 7:31–43 

uses the words “compar[ing] . . . information.” ReplyBr. 7. But this disclosure is made only in 

the context of “rules,” and never “clearly links” rule checker 132 to the particular recited function 

or explains how to perform it: “comparing the detected state with a predetermined state for said 

element and for outputting the result of the comparison.” Thus, the term is indefinite. DefBr. 13.

3. “determining means for determining an expected value of said 

parameter” (Claim 18)

Defendants’ Proposal WSOU’s Revised Proposal

This term is subject to 35 U.S.C. § 112, ¶ 6

Function: determining an expected value of said parameter

Structure: Indefinite Prior Structure: monitor having the claimed functionality

New Structure: operation(s) which apply one or more rules 

interrelating “the detected” state and the “expected value,” as 

explained, for example, at 6:34-37, 6:45-58, and 9:12-11:60

WSOU now agrees to the recited function, but argues that the term is not indefinite because 

the corresponding structure is “operation(s) which apply one or more rules interrelating ‘the 

detected’ state and the ‘expected value,’ as explained, for example, at 6:34-37, 6:45-58, and 9:12-

11:60.” ReplyBr. 7. WSOU simply made up this structure. None of the three passages to which 

WSOU cites comes close to clearly linking or explaining how any structure—including vague 

“operation(s)”—performs the function of “determining an expected value of said parameter.” 

For instance, 6:34–37 states that “a rule” may “specify” the status of scheduler elements

and 6:45–58 states that a monitor may be “adapted to receive information concerning the status” 

of an element. But neither says anything about the process of “determining” anything, much less 

the “expected value of [a] parameter.” In addition, 9:12–11:60 discusses examples of scheduler 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 11 of 26
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elements not “functioning properly” (which only further supports Defendants’ construction at 

Section II.B), but nothing in these three columns of the patent “clearly links” any structure 

(including WSOU’s “operation(s)”) to “determining an expected value of said parameter,” or 

explains how any structure performs that function. Thus, the term is indefinite. DefBr. 14–15.

E. “element . . .” or “element for . . .” terms

WSOU’s only argument for why Section 112, ¶ 6 does not apply to these claims reciting 

the nonce word “element” is that the patent “repeatedly and consistently refers to the claimed 

‘element’ as a structural component (of the scheduler) that serves as data storage for specific 

information.” ReplyBr. 9. That is false. Nothing in the patent, including WSOU’s sparse citations 

to it, ever states that an “element” is a structural component—for data storage or otherwise. In 

fact, the words “structural component” and “data storage” do not appear in the patent at all, let 

alone to describe an “element.” WSOU offers no other evidence that a person of ordinary skill in 

the art would have considered “element” to connote such structure, or why WSOU’s generic “data 

storage” descriptor alone confers adequate structure. See Via Vadis, LLC v. Blizzard Entm’t, Inc., 

815 F. App’x 539, 546 (Fed. Cir. 2020) (holding indefinite claims reciting “data storage means” 

with no additional disclosure of structure). Section 112, ¶ 6 therefore applies. DefBr. 15–16.

Corresponding Structure. In its opening brief, WSOU argued that if these terms are 

“deemed subject to 35 U.S.C. § 112, ¶ 6, then” the corresponding structure is “scheduler having 

the claimed functionality.” PlBr. 12, 14–15. For the first time on reply, however, WSOU identifies 

new corresponding structure. ReplyBr. 9–12. WSOU’s ever-shifting positions demonstrate only

that there is no merit to its arguments. Its new assertions are also waived. Dixon, 794 F.3d at 508.

Defendants’ Proposal WSOU’s Revised Proposal

“element for recording whether a 

queue is empty or occupied” 

(claims 1, 5, 6, 7–9, 14–15, 20, 25, 

No construction required apart from finding this term is 

not subject to 35 U.S.C. § 112, ¶ 6. Alternatively, if 

deemed subject to 35 U.S.C. § 112, ¶ 6, then, 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 12 of 26
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26, 30, 33–35, and 38)

Function: recording whether a 

queue is empty or occupied

Structure: queue status register 

165, 167, 201, or 203

Function: recording whether a queue is empty or 

occupied. 

Prior Structure: scheduler having the claimed 

functionality

New Structure: data storage within a scheduler, such as, 

for example, queue status register 165, 167, 201, or 203

WSOU now agrees that if Section 112, ¶ 6 applies, queue status register 165, 167, 201, or 

203 is corresponding structure. ReplyBr. 9. Nevertheless, WSOU attempts to broaden the claims

by adding that the structure is “data storage within a scheduler, such as, for example, queue status 

register 165, 167, 201, or 203.” Id. As explained above, there is no disclosure in the specification 

concerning “data storage” as a “structural component” whatsoever, much less for this particular 

recited function, and thus WSOU’s “data storage” addition should be rejected. Supra, p. 7.

WSOU’s two arguments simply don’t make sense. First, WSOU argues that if “queue 

status register” is the corresponding structure, it would “render superfluous certain claim 

recitations.” ReplyBr. 10. WSOU offers no coherent explanation why, and in any event this

argument directly contradicts WSOU’s agreement that “queue status register” is that structure. 

Second, WSOU argues that “it is unclear if Defendants seek[] to exclude simulated

embodiments—e.g., where the ‘element for recording’ is implemented as a ‘simulated circuit.’” 

Id. As an initial matter, none of the passages from the patent that WSOU cites (2:65–3:4, 4:7, 

12:20–29) say anything about implementing an “element for recording” as a “simulated circuit”—

they do not even use the phrase “element for recording” at all. Regardless, WSOU asks the wrong 

question. The Section 112, ¶ 6 analysis limits the corresponding structure to whatever structure 

the specification discloses as being “clearly linked” to the recited function. Here, the specification 

explains that—as WSOU agrees—the queue status register is corresponding structure, and makes 

no distinction between “simulated embodiments” and non-simulated embodiments. DefBr. 16–

17. Thus, Defendants’ position simply is that the structure is what the specification says it is.

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 13 of 26
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Defendants’ Proposal WSOU’s Revised Proposal

“an element for recording the [number 

of [data] cells/quantity of data] 

contained in a queue” (claims 1, 5–6, 9, 

14–15, 20, 26, 30, 33–35, and 38)

Function: recording the [quantity of 

data/number of data cells] contained in 

a queue

Structure: counter 169, 205, or 207

No construction required apart from finding this term 

is not subject to 35 U.S.C. § 112, ¶ 6. Alternatively, 

if deemed subject to 35 U.S.C. § 112, ¶ 6, then, 

Function: recording the [quantity of data / number of 

cells / number of data cells] contained in a queue; 

Prior Structure: scheduler having the claimed 

functionality

New Structure: data storage within a scheduler, such 

as, for example, counter 169, 205, or 207

WSOU now agrees that if Section 112, ¶ 6 applies, counter 169, 205, or 207 is 

corresponding structure. ReplyBr. 10. But again WSOU attempts to broaden the claims by adding 

that the structure is “data storage within a scheduler, such as, for example, counter 169, 205, or 

207.” Id. WSOU’s “data storage” addition should be rejected for the reasons discussed above. 

Supra, p. 7. WSOU’s only argument is that if “counter” is the corresponding structure, it would 

render superfluous limitations in claim 8—which is not even a claim that recites this term and 

therefore is not at issue. Yet again, WSOU fails to explain why this is relevant and, in any event, 

the argument contradicts WSOU’s agreement that “counter” is corresponding structure.

Defendants’ Proposal WSOU’s Revised Proposal

“an element identifying a queue 

from which data is to be output” 

(claims 1, 26, 5, 20, and 30)

Function: identifying a queue 

from which data is to be output

Structure: pointer 177, 179, 

181, 183, 209, 211, 213, or 215

No construction required apart from finding this term is not 

subject to 35 U.S.C. § 112, ¶ 6. Alternatively, if deemed 

subject to 35 U.S.C. § 112, ¶ 6, then, 

Function: identifying a queue from which data is to be 

output 

Prior Structure: scheduler having the claimed functionality

New Structure: data storage within a scheduler, such as, for 

example, pointer 177, 179, 181, 183, 209, 211, 213, or 215

WSOU now agrees that if Section 112, ¶ 6 applies, pointer 177, 179, 181, 183, 209, 211, 

213, or 215 is corresponding structure. ReplyBr. 11. But it attempts to broaden the claims by 

arguing that the structure is “data storage within a scheduler, such as, for example, pointer . . . .” 

Id. WSOU’s “data storage” addition is wrong for the reasons discussed above. Supra, p. 7.

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 14 of 26
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WSOU argues that if the corresponding structure is the “pointer,” it would “risk excluding 

certain example embodiments.” ReplyBr. 11. WSOU cites two lines of the patent (11:42–43) 

concerning a “queue identifier” as purported support. Id. The full passage (11:42–45) actually 

states that “test cells may be generated by a cell generator, each including a queue identifier (e.g., 

header) uniquely identifying one of the queues within the input buffer in which the cell should be 

placed.” WSOU identifies no disclosure showing that “test cells” are the same as the “data” at 

issue in the recited function. Even assuming they are equivalent (and there is no support that they 

are), WSOU’s cited passage involves the opposite of what the recited function requires: 

“identifying a queue from which data is to be output”—not a queue in which data will be input.

 WSOU also argues that claim 27—which is not even at issue for this term—recites a 

“current pointer” and a “next pointer,” and thus the structure cannot be limited to the “specific 

pointer embodiments [Defendants] identified”: pointer 177, 179, 181, 183, 209, 211, 213, or 215. 

ReplyBr. 11. But WSOU itself identifies the same “specific pointer embodiments” as 

corresponding structure. Id. Even if claim 27’s recitation of a “current pointer” or “next pointer” 

mattered, the specification confirms that these pointers—which WSOU agrees are corresponding 

structure—are either a current pointer (177, 181, 209, 211) or a next pointer (179, 183, 213, 214). 

E.g., ’360 patent, 6:1–16, 8:23–29. Thus, WSOU’s argument again makes no sense.

Defendants’ Proposal WSOU’s Revised Proposal

“an element [identifying/indicating] a 

group of queues from which data is to be 

output” (claims 1, 5, 9, 14–15, 20, 26, 30, 

33, 35, and 38)

Function: [identifying/indicating] a 

group of queues, from which data is to 

be output

Structure: Indefinite

No construction required apart from finding this 

term is not subject to 35 U.S.C. § 112, ¶ 6. 

Alternatively, if deemed subject to 35 U.S.C. § 112, 

¶ 6, then, 

Function: identifying a queue from which data is to 

be output 

Prior Structure: scheduler having the claimed 

functionality

New Structure: priority selector 173 or 208

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WSOU now argues that if Section 112, ¶ 6 applies, the corresponding structure is priority 

selector 173 or 208. ReplyBr. 11. WSOU agrees that the recited function involves “identifying” 

queues from which data is to be output. Id. But the only disclosure WSOU cites for support 

relates to selecting queues after they have already been identified. For instance, WSOU cites 8:14–

15 and 8:47–52, which refer only to “selecting the 15 high or low priority queues” and “select[ing]

the high priority queues,” respectively. ReplyBr. 12. These passages not only fail to “clearly link” 

priority selector to the “identifying” function, but they also say nothing about a group of queues

(the object of the function). WSOU’s other paraphrasing of the patent—namely, to insert the word 

“identifying” where the specification only refers to selecting—cannot serve as a substitute for the 

requisite corresponding structure.

2

 Id. at 12–13. Thus, the term is indefinite. DefBr. 19–20.

III. U.S. Patent No. 7,539,133 (Case No. -480)

A. “whether a congestion condition exists [on/for] the egress node” (Claims 1, 

12, and 13)

Defendants’ Proposal WSOU’s Proposal

“whether the egress node is currently congested” Plain and ordinary meaning

WSOU does not dispute that the patent defines the phrase “whether the egress node 

currently has a congestion condition” as “whether the egress node is currently congested.” 

ReplyBr. 13. Yet WSOU asserts that this definition is inapplicable because the defined phrase 

recites “an extraneous ‘currently’ qualifier” that is “restate[d]” in the definition. ReplyBr. 13. 

WSOU is wrong and the definition is dispositive because the disputed claim term can only be 

understood as referring to a current “congestion condition.” The term recites whether a 

“congestion condition exists,” not whether it existed or will exist, and contrasts that with whether 

2

 WSOU argues that Defendants “fail[] to defend[] [their] attempt to import either ‘high or low 

priority’” into the construction. ReplyBr. 12 n.7. Defendants never took such a position in their 

responsive brief. DefBr. 19–20. WSOU’s straw man argument therefore is misplaced.

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 16 of 26
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a congestion condition “does not exist”—again, present tense. ’133 patent, 16:36–41, 18:16–24, 

18:39–46. Nor has WSOU disputed that Defendants’ present-tense construction is consistent with 

how “congestion condition” is used throughout the specification. See DefBr. 22; ReplyBr. 13. 

B. “processing the packets” (Claims 1, 12, and 13)

Defendants’ Proposal WSOU’s Proposal

“modifying, at the ingress node, the queuing priority of 

packets destined for the egress node”

Plain and ordinary meaning

The specification requires Defendants’ construction by stating (1) “[t]he present invention

modifies the queuing priority of packets on ingress nodes” and (2) “[t]he present invention . . . 

determin[es] whether to process the packet for modifying the queuing priority of the packet (or 

for dropping the packet at the ingress node).” ’133 patent, 2:52–59. Statement (1) unequivocally 

disavows all methods and systems except for those that modify queuing priorities. Statement (2) 

requires that the modification occur during the “processing the packets” step. DefBr. 22–24. In 

response, WSOU offers a raft of arguments, all of which are irrelevant. 

First, WSOU asserts that statements “about ‘the present invention’” are “not limiting” 

where “the specification clearly indicates the feature in question is a feature of only certain 

embodiments.” ReplyBr. 14 (citing Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 1121, 

1136 (Fed. Cir. 2011)). But statement (1) contains no such “indicat[ion],” and WSOU does not 

contend otherwise. WSOU’s citation to Absolute Software is unavailing as the specification there 

described “[s]ome of the features that can be included in the present invention.” 659 F.3d at 1137. 

Statement (1) contains no permissive language. 

Second, WSOU asserts (ReplyBr. 14) that statement (2) describes two examples of 

“processing the packets,” and thus cannot define that term as recited in Defendants’ construction. 

See ’133 patent, 2:55–59. But as noted, the point of statement (2) is that modifying queueing 

priorities occurs during the “processing the packets” step, which WSOU does not dispute. DefBr. 

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23. In the same vein, WSOU asserts (ReplyBr. 14) that construing claim 1 to require modifying 

queuing priorities conflicts with dependent claim 4, which recites “dropping the packets.” ’133 

patent, 16:55–58. But modifying queuing priorities and dropping packets are not mutually 

exclusive—the specification describes performing them in tandem: “the modified queuing 

priority may be utilized by other modules of the load-balancing network . . . for determining which 

packets to drop in response to a packet drop condition.” ’133 patent, 6:59–65. 

Third, WSOU asserts that “example processing may still involve determining whether to 

modify.” ReplyBr. 14. Even if WSOU were correct, it would not matter because that alleged 

disclosure does not refute the specification’s clear disavowal in statement (1). And WSOU’s cited 

sentence (’133 patent, 6:54–59) says nothing about “determining whether to modify”; it describes 

“modifying the queuing priority associated with the packet.”

 Fourth, WSOU erroneously argues that if Defendants’ construction were correct, claim 5 

would have recited “reassigning” or “modifying” certain queuing priorities instead of “assigning.” 

ReplyBr. 14. But the patent establishes that “assigning” a “lower queuing priority,” as recited in 

claim 5, is necessarily a reassignment and a modification. That is because, by default, all packets 

are unmarked, and thus have a high queueing priority. See, e.g., ’133 patent, 5:24–27, 6:54–59. 

Thus, in assigning a “lower queuing priority” (i.e., by “marking” the packet), the system is 

“reassigning” and “modifying” the packet’s queuing priority. 

Finally, WSOU argues that the “determining an egress node” limitation “pertains to a 

distinct step of claim 1” that does not “expressly limit where the claimed ‘processing’ must occur.” 

ReplyBr. 15. That is not Defendants’ argument. Defendants’ argument, to which WSOU has no 

response, is that the recitation of “traffic flow received at an ingress node” is consistent with the 

patent’s clear disavowal and the point of the “present invention.” DefBr. 24; ReplyBr. 15.

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 18 of 26
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C. “such that packets associated with egress nodes for which the congestion 

condition does not exist have a different queuing priority within the load 

balancing network than packets associated with egress nodes for which the 

congestion condition exists” (Claims 1, 12, and 13)

Defendants’ Proposal WSOU’s Proposal

“such that packets are marked depending on whether they are 

destined for a congested egress node, such that marked packets 

have a different probability of being dropped”

Plain and ordinary meaning

WSOU does not dispute that the specification dictates that a “queuing priority” (1) is 

indicated by marking a packet depending on whether it is destined for a congested egress node and 

(2) indicates the probability that the packet will be dropped along the way. DefBr. 25–26; ReplyBr. 

15. WSOU’s acquiescence is dispositive. 

WSOU’s only remaining argument, claim differentiation, is a presumption that is overcome 

where, as is uncontested here, “the specification or prosecution history dictates a contrary 

construction.” GPNE Corp. v. Apple Inc., 830 F.3d 1365, 1371 (Fed. Cir. 2016). Defendants’ 

construction recites features distinct from the limitations recited in claims 4 and 6. As Defendants 

have established and WSOU has not disputed (DefBr. 27; ReplyBr. 15), claim 4 recites “dropping 

the packets,” which is distinct from the “probability of being dropped” recited in the construction. 

Claim 6, which depends from claim 5, recites an affirmative “marking” step that is included in the 

“assigning” step recited in claim 5, both of which are absent from Defendants’ construction. ’133 

patent, 16:66–17:3. WSOU also cites SunRace Roots Enterprise Co. v. SRAM Corp., 336 F.3d 

1298 (Fed. Cir. 2003) as establishing it is entitled to a “strong presumption.” ReplyBr. 15. But 

SunRace holds that claim differentiation is especially strong “when the limitation in dispute is the 

only meaningful difference between an independent and dependent claim.” 336 F.3d at 1303. 

That is not the case here. Claim 4 recites “dropping the packets” and claim 6 recites “allowing 

pass through of packets”—neither of which is recited in claim 1. ’133 patent, 16:57–58, 17:4–6. 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 19 of 26
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D. “means for determining, for each packet, whether a congestion condition exists 

on the egress node” (Claim 12)

Defendants’ Proposal WSOU’s Proposal

This term is subject to 35 U.S.C. § 112, ¶ 6; Function: determining, for each packet, whether 

a congestion condition exists on the egress node

Structure: Indefinite Structure: processor 210 performing 

operations at ’133 patent, 5:11-20

Defendants established that the claimed function is performed by a general-purpose 

processor (e.g., processor 210), but the specification does not provide the requisite algorithm—it 

does not disclose how to determine whether a congestion condition exists. DefBr. 27–28. WSOU 

agrees that the corresponding structure must include processor 210, and WSOU does not dispute 

it is a general-purpose processor. ReplyBr. 15–16. Recognizing an algorithm is therefore required, 

WSOU argues that the operations described at 5:11–20 disclose the requisite algorithm. ReplyBr. 

16. But that passage merely recites the claimed function—“processor 210 determines the egress 

node congestion status associated with the identified egress node”—it says nothing about how it 

does so. That is dispositive and compels holding claim 12 indefinite. Augme Techs., Inc. v. Yahoo! 

Inc., 755 F.3d 1326, 1337 (Fed. Cir. 2014) (holding that the specification “must disclose some

algorithm; it cannot merely restate the function recited in the claim”) (emphasis in original). 

The other passages that WSOU identifies (ReplyBr. 16) are irrelevant as they are not part 

of the structure WSOU identifies, and are insufficient in any event. They merely describe storing, 

retrieving, and conveying “congestion condition information,” not, as the recited function requires,

how that information is determined in the first place. ’133 patent, 3:3–6, 5:39–51, 5:65–6:12. 

Lastly, while WSOU cannot dispute that an algorithm is required, it erroneously asserts 

that Defendants’ position is inconsistent with their position on “means for determining an egress 

node,” which is not disputed. ReplyBr. 16. Defendants’ identification for that term was not limited 

to processor 210—it also included “switch 230, and one or more routing tables associated with 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 20 of 26
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switch 230” (PlBr. 21)—so no algorithm was required. For this disputed term, the parties agree 

that the structure is limited to a general-purpose processor, and thus an algorithm is required. Net 

MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1367 (Fed. Cir. 2008) (“[A] means-plus-function 

claim element for which the only disclosed structure is a general purpose computer is invalid if the 

specification fails to disclose an algorithm for performing the claimed function.”). 

E. “means for processing the packets such that packets associated with egress 

nodes for which the congestion condition does not exist have a different 

queuing priority within the load-balancing network than packets associated 

with egress nodes for which the congestion condition exists” (Claim 12)

Defendants’ Proposal WSOU’s Revised Proposal

This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: processing the packets such that packets associated with egress nodes for which the 

congestion condition does not exist have a different queuing priority within the load-balancing 

network than packets associated with egress nodes for which the congestion condition exists

Structure: processor 210 which marks 

the packets such that marked packets 

have a different probability of being 

dropped than unmarked packets

Structure: processor 210 which marks packets in 

a manner that differentiates queuing priority based 

on whether the packets are associated with egress 

nodes for which the congestion condition exists

WSOU now agrees that the corresponding structure is processor 210 (a general purpose 

processor) and the algorithm requires marking packets. ReplyBr. 16–17. The only dispute is 

whether the processor must mark packets such that marked and unmarked packets have different 

drop probabilities (Defendants’ position) or in a manner that “differentiates queuing priority” 

(WSOU’s position). Defendants’ position is correct because the patent consistently states that 

processing packets to have differing queuing priorities is performed by marking packets such that 

the marked packets are dropped with a different probability than unmarked packets, and WSOU 

does not contend otherwise. DefBr. 30; ReplyBr. 17. 

WSOU criticizes Defendants’ construction, asserting that the patent does not 

“unambiguously disclaim” differing queuing priorities. ReplyBr. 17. But “disclaimer” is not the 

issue for means-plus-function limitations. The “construction” of these limitations is an 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 21 of 26
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“identif[ication of] the ‘corresponding structure, material, or acts described in the specification’ to 

which the claim term will be limited.” Robert Bosch, LLC v. Snap-On Inc., 769 F.3d 1094, 1097 

(Fed. Cir. 2014) (citation omitted). WSOU’s proposal does not recite how the claimed function is 

performed—it parrots the claimed function after replacing “processing” with “marking.” Augme 

Techs., 755 F.3d at 1337 (restating the claimed function is insufficient). 

In support of its irrelevant “disclaimer” argument, WSOU argues that the patent describes 

“marking” without “mentioning” differing drop probabilities. ReplyBr. 17 (citing ’133 patent, 

9:51–10:2). But the cited passage expressly links “dropping” and “marking,” stating that “marked 

packets . . . are dropped before unmarked packets.” ’133 patent, 9:65–10:1. And the patent 

consistently teaches that dropping marked packets before unmarked ones is an example of 

dropping marked packets with higher probability. ’133 patent, 7:26–39, 8:15–26, 8:64–9:7. 

IV. U.S. Patent No. 7,636,309 (Case No. -485)

A. “split ratio vector” (Claims 1, 11, and 16)

Defendants’ Proposal WSOU’s Revised Proposal

Agreed Construction: “the proportion of the flow routed in each path”

V. U.S. Patent No. 9,164,800 (Case No. -481)

A. “latency cost” (Claims 1, 13)

Defendants’ Proposal WSOU’s Proposal

“communication delay between a compute node and a data node” Plain and ordinary meaning

WSOU now “disputes that ‘latency cost’ refers exclusively to communication delay.” 

ReplyBr. 17; see contra PlBr. 25–26 (not disputing this point). While ignoring Defendants’ 

numerous patent citations showing that latency and communication delay are synonymous (DefBr. 

33), WSOU points to one sentence that it erroneously contends reveals an inconsistency. ReplyBr. 

17–18 (citing ’800 patent, 6:54–57). That alleged inconsistency is a product of WSOU’s

comparing apples to oranges. Specifically, the patent teaches that, to account for the total 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 22 of 26
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communication delay from a “higher volume of data,” the per-unit communication delay “may 

also be weighted by the amount of data to be processed.” ’800 patent, 6:53–54. While WSOU 

asserts that this sentence means that it is possible “for latency cost to be high (e.g., due to 

substantial increased traffic) even if communication delay is low” (ReplyBr. 17), what it plainly 

means is that it is possible for the total communication delay (the sum of the communication delay

and what WSOU calls the “latency cost”) to be high while the per-unit delay (what WSOU calls 

the “communication delay”) is low. “Latency cost” and “communication delay” are completely 

consistent and, in the context of the ’800 patent, coextensive. 

Defendants also established that because independent claims 1 and 13 require the “latency 

cost” be “used in obtaining a set of assignments” and the intrinsic record requires that 

“assignments” be between compute and data nodes, the “latency cost” must be the communication 

delay between a compute node and a data node. DefBr. 33–35. WSOU erroneously cites two 

sentences as supporting its allegation that the “claim language” does not “preclude” the claimed 

“set of assignments” from “pertaining” to multiple compute nodes cooperating to perform a 

processing task. ReplyBr. 18 (citing ’800 patent, 1:37–41, 8:10–12). But as Defendants 

established and WSOU did not specifically dispute, the “claim language” does “preclude” 

assignments between multiple compute nodes. DefBr. 33–34. Neither of WSOU’s cites refutes 

that conclusion. The first passage (1:37–41) says nothing about assignments. The second passage 

(8:10–12) supports Defendants—it states that a “data node may be processed by two compute 

nodes” (or vice versa). So the assignments are still compute/data node assignments, i.e., two 

compute nodes can be assigned to the same data node (or vice versa). ’800 patent, 8:14–20. 

WSOU also repeats its irrelevant allegation that the specification “contemplates” a communication 

latency between compute nodes. ReplyBr. 18. What matters is that the specification consistently 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 23 of 26
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describes assignments as being between compute and data nodes, which WSOU does not dispute.

B. “[determining/determine] an assignment objective” (Claims 1, 13)

Defendants’ Proposal WSOU’s Proposal

“select[ing] one of a plurality of assignment objectives” Plain and ordinary meaning

WSOU’s Reply is telling as it sidesteps the applicants’ unmistakable prosecution history 

disclaimer. See ReplyBr. 18–19; DefBr. 35–36. WSOU states that “[r]egardless of whether 

prosecution disclaimer applies to the one embodiment Dell identified, Dell misinterprets the 

specification as only disclosing two alternative embodiments.” ReplyBr. 18. But “whether 

prosecution disclaimer applies” is dispositive. Because it applies, all other embodiments are 

disclaimed irrespective of how many others there may be. Oatey Co. v. IPS Corp., 514 F.3d 1271, 

1277 (Fed. Cir. 2008) (“[W]e have interpreted claims to exclude embodiments of the patented 

invention where those embodiments are clearly disclaimed in the specification . . . or prosecution 

history.”). WSOU does not dispute this disclaimer, so WSOU’s dispute over the number of 

embodiments disclaimed and what those disclaimed embodiments allegedly disclose is irrelevant.

WSOU also criticizes Defendants for allegedly “opt[ing] to not even take a position in its 

response brief as to whether its proposed construction” requires all of the “plurality of assignment 

objectives” recited in the construction to be based on a latency cost. ReplyBr. 19. That is false. 

Defendants stated that their “construction does not require that all of the assignment objectives 

must be based on a latency cost.” DefBr. 36. Finally, WSOU argues that Defendants “fail[ed] to 

defend its apparent attempt to limit the claim language to selecting only ‘one’ of allegedly multiple 

assignment objectives.” ReplyBr. 19. The “one” assignment objective comes directly from the 

applicants’ remarks, which disparaged prior art for not providing an “opportunity to determine 

which assignment objective is to be achieved.” Dkt. 82-12 at 15. That statement disclaims 

contrary embodiments, and thus WSOU’s cite to the specification is irrelevant. 

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 24 of 26
20

Dated: April 14, 2021 By: /s/ Barry K. Shelton

Barry K. Shelton

Texas State Bar No. 24055029

bshelton@sheltoncoburn.com

SHELTON COBURN LLP

311 RR 620, Suite 205

Austin, TX 78734-4775 

Telephone: 512.263.2165

Facsimile: 512.263.2166 

Benjamin Hershkowitz

bhershkowitz@gibsondunn.com

Brian A. Rosenthal

brosenthal@gibsondunn.com 

Allen Kathir

akathir@gibsondunn.com

Kyanna Sabanoglu

ksabanoglu@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

200 Park Avenue

New York, NY 10166-0193 

Telephone: 212.351.4000

Facsimile: 212.351.4035 

Y. Ernest Hsin

ehsin@gibsondunn.com

Jaysen S. Chung

jschung@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: 415.393.8200

Facsimile: 415.393.8306

Ryan K. Iwahashi

riwahashi@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

1881 Page Mill Road

Palo Alto, CA 94304-1211

Telephone: 650.849.5300

Facsimile: 650.849.5333

Attorneys for Defendants

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 25 of 26
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CERTIFICATE OF SERVICE

The undersigned certifies that on April 14, 2021, all counsel of record who are deemed to 

have consented to electronic service are being served with a copy of this document through the 

Court’s CM/ECF system under Local Rule CV-5(b)(1). 

/s/ Barry K. Shelton 

Barry K. Shelton

Case 6:20-cv-00480-ADA Document 86 Filed 04/14/21 Page 26 of 26