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.

GOOGLE LLC,

Defendant. _______________________________________________

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Civil Case No. 6:20-cv-571-ADA

Civil Case No. 6:20-cv-578-ADA

Civil Case No. 6:20-cv-583-ADA

Civil Case No. 6:20-cv-584-ADA

JURY TRIAL DEMANDED

GOOGLE’S RESPONSIVE CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 1 of 16
TABLE OF CONTENTS

Page

-iI. U.S. PATENT NO. 7,777,728 (CASE NO. 6:20-CV-583-ADA) ..................................... 1

A. “tap direction” (claims 1, 11, 16)........................................................................... 1

II. U.S. PATENT NO. 9,335,825 (CASE NO. 6:20-CV-578-ADA) ..................................... 4

A. “continuous wave doppler radar” (claims 1 and 19).............................................. 4

B. “at least one memory and the computer program code are configured, with 

the at least one processor, to cause the apparatus to at least: detect that an 

application is being started on the apparatus; in response to the application 

being started on the apparatus, turn on a continuous wave doppler radar at 

the apparatus” (claim 1)......................................................................................... 6

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 2 of 16
- ii -

TABLE OF AUTHORITIES

Page

CASES

Dyfan, LLC v. Target Corp.,

6:19-cv-179-ADA, Dkt. 57 (W.D. Tex. 2020) ..........................................................................7

Egenera, Inc. v. Cisco Sys., Inc.,

972 F.3d 1367 (Fed. Cir. 2020)..............................................................................................6, 8

First-Class Monitoring, LLC v. UPS, Inc.,

389 F. Supp. 3d 456 (E.D. Tex. 2019).......................................................................................8

Function Media, L.L.C. v. Google, Inc.,

708 F.3d 1310 (Fed Cir. 2013)...................................................................................................8

LG Elecs., Inc. v. Bizcom Elecs., Inc.,

453 F.3d. 1364 (Fed. Cir. 2006).................................................................................................7

Media Rights Techs., Inc. v. Capital One Fin. Corp.,

800 F.3d 1366 (Fed. Cir. 2015)..............................................................................................7, 8

Merck & Co. v. Teva Pharms. USA, Inc.,

395 F.3d 1364 (Fed. Cir. 2005)..............................................................................................2, 3

O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,

521 F.3d 1351 (Fed. Cir. 2008)..................................................................................................1

Qcue, Inc. v. Digonex Techs., Inc.,

Case No. 12-484, 2013 WL 4784120 (W.D. Tex. Sept. 5, 2013), aff’d, 575 

Fed. App’x 895 (Fed. Cir. 2014)................................................................................................2

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

769 F.3d 1094 (Fed. Cir. 2014)..................................................................................................8

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)..........................................................................................6, 7, 8

WMS Gaming, Inc. v. Int’l Game Tech.,

184 F.3d 1339 (Fed. Cir. 1999)..................................................................................................8

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 3 of 16
- iii -

TABLE OF EXHIBITS

Exhibit No. Description

Ex. 1 U.S. Patent No. 7,777,728

Ex. 2 Manual for the Nokia N770

Ex. 3 U.S. Patent No. 9,335,825

Ex. 4 Oxford Desk Dictionary excerpt

Ex. 5 Excerpt from the ’825 patent file history

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 4 of 16
- iv -

TABLE OF ABBREVIATIONS

Abbreviation Description

WSOU Plaintiff WSOU Investments, LLC d/b/a Brazos License and 

Development

Google Defendant Google LLC

’728 patent U.S. Patent No. 7,777,728

’825 patent U.S. Patent No. 9,335,825

POSITA Person Of Ordinary Skill In The Art

* Emphasis added unless indicated otherwise.

** For the Court’s convenience, Google cites to WSOU’s opening brief by referring to the brief 

filed in Civil Case No. 6:20-cv-578-ADA (which is the same for all of the above-captioned cases) 

and to the pagination generated by CM/ECF (at the top of the page) rather than the pagination 

at the bottom of the page.

.

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 5 of 16
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I. U.S. PATENT NO. 7,777,728 (CASE NO. 6:20-CV-583-ADA)

The ’728 patent (Ex. 1) generally describes a “text input method for an electronic 

apparatus having a user interface with a touch sensitive display.” (Id. at 1:7-8.) It describes a 

“user interface, wherein a virtual keyboard is displayed on the display so as to facilitate input of 

an intended character for a user by touching keys of the virtual keyboard with a pointer.” (Id. at 

1:66 to 2:2.)

A. “tap direction” (claims 1, 11, 16)

Google’s Construction WSOU’s Construction

tap direction that extends between the first tap 

position and a second tap position

plain and ordinary meaning

WSOU’s infringement contentions accuse glide typing, which does not involve the user 

tapping the screen, but instead dragging a finger without lifting it up. As a result, WSOU seeks a 

construction that ignores the “tap” in “tap direction,” and conflicts with intrinsic and extrinsic 

evidence. Google’s construction seeks to confirm that “tap” means “tap,” by asking the Court to 

construe “tap direction” to mean “tap direction that extends between the first tap position and a 

second tap position,” ensuring that the user is tapping rather than gliding, and remaining 

consistent with the intrinsic and extrinsic record. WSOU claims that plain and ordinary meaning 

will suffice (Dkt. 33 at 9),1 but WSOU and Google differ on the plain and ordinary meaning of 

“tap direction,” and thus “reliance on a term’s ‘ordinary’ meaning does not resolve the parties’ 

dispute.” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 

 1 For the Court’s convenience, Google cites to WSOU’s opening brief by referring to the 

brief filed in Civil Case No. 6:20-cv-578-ADA (which is the same for all of the above-captioned 

cases) and to the pagination generated by CM/ECF (at the top of the page) rather than the 

pagination at the bottom of the page.

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 6 of 16
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2008).

The glide typing WSOU accuses of infringement allows the 

user to make a freeform shape on the keyboard, and uses that shape 

to derive a word to input into the text field. Glide typing does not 

involve or even allow tapping, which would prevent it from 

interpreting a shape. WSOU’s construction would thus read the word “tap” out of the claim, by 

including any “direction” instead of only a “tap direction.” As WSOU admits, “interpretations 

that render some portion of the claim language superfluous are disfavored.” (Dkt. 33 at 10 

(quoting Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410 (Fed. Cir. 2004))); 

see, e.g., Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) (“A 

claim construction that gives meaning to all the terms of the claim is preferred over one that does 

not do so.”); Qcue, Inc. v. Digonex Techs., Inc., Case No. 12-484, 2013 WL 4784120, at *4 

(W.D. Tex. Sept. 5, 2013) (“[P]roposed construction would impermissibly read ‘pricing’ out of 

the claim.”), aff’d, 575 Fed. App’x 895 (Fed. Cir. 2014). Although WSOU argues that Google’s 

construction would render claim language superfluous (Dkt. 33 at 10), that is not so: Google’s 

construction would ensure that that “tap” has meaning by confirming that a “tap direction” 

extends between two taps, a “first tap position and a second tap position.”

The specification confirms that the patentee understood “tapping” to mean tapping, that 

is, a press-down followed by a lift-up in the same location. The specification notes that a “user 9 

may operate the pocket computer 1 by pointing/tapping/dragging with a pointer 9c such as a 

stylus or pen,” acknowledging that “pointing,” “tapping,” and “dragging” are different actions 

(Ex. 1 at 4:54-60), but specifically chose “tap” in the claims. Furthermore, in describing how 

“[t]he distance and angle between the new position 163 and the previous position 161 is 

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 7 of 16
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calculated” (id. at 7:31-33), the patent provides that “the user 9 has pressed stylus 9c on the 

screen at the position 161 for the letter ‘d’” and “[t]o input the next letter, ‘o’, the user 9 then 

lifts and moves the stylus along a path 162, and presses down the 

stylus at a new position.” (Id. at 7:12-17.) Google’s construction 

honors the specification and the patentee’s decision to include the 

word “tap” in the claims; WSOU’s construction contradicts the 

specification and would render “tap” in the claims superfluous. Merck, 395 F.3d at 1372.

Finally, extrinsic evidence confirms the patentee’s understanding 

of “tap” to mean a press-down followed by a lift-up in the same location. 

The ’728 depicts a device, the Nokia N770, that patentee Nokia released 

shortly before it filed the application that became the patent. (Compare

Ex. 2 at 1 with Ex. 1 at Fig. 6; see also Ex. 1 at Figures 1-3, 7-9b.) The 

manual for the N770 stated that a tap is a “stylus down and up on the 

same object,” which it distinguished from other touch actions:

(Ex. 2 at 11.) The N770 Manual specifically distinguished “tapping” from “dragging”:

(Id.) Accordingly, WSOU’s interpretation of “tap direction” to include dragging misinterprets 

not only the patentee’s understanding in the intrinsic record, but also its public explanation of the 

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 8 of 16
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same term in the manual for the device depicted by the patent. Google’s construction follows the 

intrinsic and extrinsic record. The Court should adopt it.

II. U.S. PATENT NO. 9,335,825 (CASE NO. 6:20-CV-578-ADA)

The ’825 patent relates to an apparatus that uses a continuous wave doppler radar to 

detect a human gesture and interpret the detected gesture as a user input command. (Ex. 3 at 

2:27-29.) The apparatus transmits radio signals that are reflected by a portion of the human 

body, such as a moving hand. (Id. at 2:53-54.) The reflection of the transmitted radio signals 

imparts a time-varying modulation to the radio signals, which is detected and used to identify 

one or more time-varying parameters that characterize the hand gesture that caused the signal 

modulation. (Id. at 2:52-67, 4:19-45.)

A. “continuous wave doppler radar” (claims 1 and 19) 

Google’s Construction WSOU’s Construction

a Doppler radar that emits an uninterrupted 

electromagnetic signal

plain and ordinary meaning

WSOU recognizes that the ’825 patent distinguishes a “continuous wave” Doppler radar 

from a Doppler radar that is “pulsed to save power.” (Dkt. 33 at 11.) The ’825 patent explains 

that a Doppler radar “does not have to be on continuously and may be pulsed to save power.” 

(Ex. 3 at 4:23-24.) WSOU also acknowledges that “the specification describes two types of 

Doppler radar detectors: continuous wave and pulse.” (Dkt. 33 at 11.) Google’s construction 

simply articulates this distinction by giving the term “continuous” its commonly understood 

meaning of being “uninterrupted.” (Ex. 4 at 003 (defining “continuous” as “uninterrupted; 

unbroken”).) 

Google agrees that the ’825 patent distinguishes between a “continuous” Doppler radar 

and a Doppler radar that is “pulsed to save power.” (Ex. 3 at 4:2-24.) Similarly, the 

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 9 of 16
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specification distinguishes a “continuous wave” radar from a “pulsed Doppler or pulsed Ultra 

wideband” radar. (Id. at 4:33-36.) During prosecution in order to overcome a prior-art rejection, 

the inventors stressed the distinction between a “continuous wave” Doppler radar and a radar that 

emits a pulsed signal. (Ex. 5 at 0577-589.) In doing so, the inventors amended the claims to 

recite a “continuous wave Doppler radar,” and then distinguished the prior art as using “pulses.” 

(Id. at 0586 (inventors explaining that “measuring the phase of the sent and received pulses as in 

[the prior art] clearly cannot be seen to disclose or suggest at least where amended claim 1 

relates to detecting the predetermined time-varying modulation of the received signal comprising 

detecting a doppler frequency shift in the transmitted radio signals based on a continuous wave 

doppler radar”).) 

Google’s construction reflects the distinction between a “continuous wave” Doppler radar 

and a radar that emits a pulsed signal. In accordance with the ’825 patent and prosecution 

history, a “continuous wave” Doppler radar emits a “continuous”, i.e., uninterrupted, 

electromagnetic signal. In contrast, a radar that is “pulsed” emits an electromagnetic signal that 

is interrupted. 

WSOU asserts that Google’s construction could somehow be “misapplied” to exclude 

Frequency Modulated Continuous Wave Doppler radar. (Dkt. 33 at 11-12.) This is wrong. That 

is not Google’s argument, and WSOU makes no attempt to explain why or how Google’s 

construction could be applied in this way. Whether the frequency of a transmitted signal is 

modulated has no bearing on whether the emitted signal is “continuous,” i.e., uninterrupted. In 

fact, Google’s proposed construction helps avoid any jury confusion between “wave” and 

“pulse” or “modulate” by confirming, as the patent does, that the relevant signal must be 

uninterrupted.

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 10 of 16
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B. “at least one memory and the computer program code are configured, with the 

at least one processor, to cause the apparatus to at least: detect that an 

application is being started on the apparatus; in response to the application 

being started on the apparatus, turn on a continuous wave doppler radar at 

the apparatus” (claim 1)

Google’s Construction WSOU’s Construction

Subject to Section 112, ¶ 6

Indefinite for lack of structure

plain and ordinary meaning

The dispute is whether the term “at least one memory and the computer program code are 

configured, with the at least one processor, to cause the apparatus” to perform the functions of 

“detect[ing] that an application is being started on the apparatus,” and “in response to the 

application being started on the apparatus, turn on a continuous wave doppler radar” is subject to 

Section 112, ¶ 6 and indefinite for failure to disclose corresponding structure.

To determine whether Section 112, ¶ 6 applies, the threshold inquiry is “whether the 

words of the claim are understood by [POSITAs] to have a sufficiently definite meaning as the 

name for structure.” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015). 

Though absence of the word “means” creates a rebuttable presumption that a term is not a 

means-plus-function limitation, Section 112, ¶ 6 applies when the claim term: (i) “fails to recite 

sufficiently definite structure,” or (ii) “recites function without reciting sufficient structure for 

performing that function.” Id. at 1349. Importantly, “[t]he question is not whether a claim term 

recites any structure but whether it recites sufficient structure—a claim term is subject to § 

112(f) if it recites function without reciting sufficient structure for performing that function.” 

Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367, 1374 (Fed. Cir. 2020).

Claim 1’s formulaic reference to “computer program code” and a “processor” does not 

connote sufficient structure to avoid means-plus-function treatment. Indeed, as this Court 

explains, applicants cannot “simply recite two nonce words—‘processor’ and ‘code’—together 

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 11 of 16
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in order to essentially write the claim in a means-plus-function format without being subject to § 

112, ¶ 6.” Dyfan, LLC v. Target Corp., 6:19-cv-179-ADA, Dkt. 57 at 20 & n.4 (W.D. Tex. 

2020). The same is true here for claim 1. And the addition of “at least one memory” does not 

add any meaningful structure. The memory simply indicates where the “code” is stored; it does 

not convey any structural specificity to the generic term “program code.” The specification 

confirms that a processor, memory, and program code are black-box placeholders requiring 

specific algorithms to perform the recited functions. (Ex. 3 at 5:12-18, 5:31-34 (“The computer 

program instructions provide the logic and routines that enables the apparatus to perform the 

methods illustrated in FIG. 6. The processor 20 by reading the memory 22 is able to load and 

execute the computer program.”).)

WSOU’s argument that the “program code” somehow “connotes specific structure in 

view of the detailed functional tasks recited in the body of the claim” (Dkt. 33 at 14) proves the 

opposite. That claim 1 requires the “program code” to perform a multitude of different, detailed 

functions demonstrates that “program code” amounts to nothing more than a generalized catchall for whatever algorithms may perform the recited functions. See, e.g., Media Rights Techs., 

Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1372 (Fed. Cir. 2015) (applying Section 112, ¶ 6 

because “the claims simply state that the ‘compliance mechanism’ can perform various 

functions”); Williamson, 792 F.3d at 1350 (applying Section 112, ¶ 6 when the claim language 

“replaces the term ‘means’ with the term ‘module’ and recites three functions performed by the 

‘distributed learning control module’”).

WSOU also cites LG Elecs., Inc. v. Bizcom Elecs., Inc., 453 F.3d. 1364 (Fed. Cir. 2006), 

but that case was decided before the en banc Williamson decision. The Federal Circuit expressly 

cautions against reliance on pre-Williamson cases when assessing whether Section 112, ¶ 6 

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 12 of 16
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applies. See Egenera, 972 F.3d at 1374 (rejecting arguments against applying Section 112, ¶ 6 

because “none of [plaintiff’s] precedent considers Williamson”); Media Rights, 800 F.3d at 1373 

(cautioning against reliance pre-Williamson “superseded case law, which imposed a heavy 

presumption against finding a claim term to be in means-plus-function format”).

Finally, for step two of the means-plus-function inquiry, the ’825 patent does not disclose 

any structure or algorithm to perform the claimed functions of “detect[ing] that an application is 

being started,” and “turn[ing] on a continuous wave doppler radar.” Tellingly, WSOU does not 

even attempt to identify such structure, and by “not having raised the issue in its opening brief, 

[plaintiff] has waived that argument.” First-Class Monitoring, LLC v. UPS, Inc., 389 F. Supp. 

3d 456, 469 (E.D. Tex. 2019) (Judge Bryson). Addressing similar circumstances, the Federal 

Circuit instructs that “[o]n this point [] little needs to be said” because plaintiff “did not argue to 

this court that, even if the claim language at issue is within § 112, ¶ 6, the language is definite 

because the specification sufficiently discloses corresponding structure.” Robert Bosch, LLC v. 

Snap-On Inc., 769 F.3d 1094, 1101 (Fed. Cir. 2014). In any event, nothing in the specification 

provides structure for performing the claimed function. Rather, the ’825 patent depicts the 

processor as an empty rectangle without any structural detail (Ex. 3 at Fig. 2), and states that the 

processor executes various computer program instructions that are stored in memory. Entirely 

absent from the disclosure, and necessary under the law, is a description of algorithms, routines, 

or instructions by which to perform the claimed functions. The disclosed structure must be “the 

special purpose computer programmed to perform the disclosed algorithm.” WMS Gaming, Inc. 

v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). It is equally “well settled that simply 

disclosing software [ ] without providing some detail about the means to accomplish the function 

is not enough.” Function Media, L.L.C. v. Google, Inc., 708 F.3d 1310, 1318 (Fed Cir. 2013).

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 13 of 16
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Date: February 12, 2021 Respectfully submitted,

/s/ Tharan Gregory Lanier

Tharan Gregory Lanier (pro hac vice)

Jones Day

1755 Embarcadero Road

Palo Alto, California, 94303

+1 (650) 739-3939

+1 (650) 739-3900 facsimile

tglanier@jonesday.com 

Michael E. Jones (Texas Bar No. 10929400)

Patrick C. Clutter (Texas Bar No. 24036374)

Potter Minton, P.C.

110 North College, Suite 500

Tyler, Texas, 75702

+1 (903) 597-8311

+1 (903) 593-0846 facsimile

mikejones@potterminton.com

patrickclutter@potterminton.com

Matthew S. Warren (California Bar No. 

230565)

Jennifer A. Kash (California Bar No. 203679)

(pro hac vice)

Erika Warren (California Bar No. 295570)

Warren Lex LLP

2261 Market Street, No. 606

San Francisco, California, 94114

+1 (415) 895-2940

+1 (415) 895-2964 facsimile

20-583@cases.warrenlex.com

Sasha Mayergoyz

Jones Day

77 W. Wacker Drive

Chicago, IL 60601

+1 (312) 782-3939

smayergoyz@jonesday.com

Joseph M. Sauer

Jones Day

North Point

901 Lakeside Avenue

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 14 of 16
10

Cleveland, Ohio 44114-1190

+ 1 (216) 586-3939

jmsauer@jonesday.com

Sanjiv P. Laud

Jones Day

90 South Seventh Street

Suite 4950

Minneapolis, Minnesota 55402

+ 1 (612) 217-8800

slaud@jonesday.com

David E. Anderson

Jones Day

325 John H. McConnell Blvd, Suite 600

Columbus, OH 43215

+1 (614) 281-3617

danderson@jonesday.com

Attorneys for Defendant Google LLC

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 15 of 16
CERTIFICATE OF SERVICE

I certify that on February 12, 2021, I served the foregoing by electronic mail on counsel 

of record. 

/s/ David E. Anderson

David E. Anderson 

Case 6:20-cv-00571-ADA Document 38 Filed 02/12/21 Page 16 of 16