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.

MICROSOFT CORPORATION, 

Defendant.

 Civil Action No. 6:20-cv-00460

 Civil Action No. 6:20-cv-00462

 Civil Action No. 6:20-cv-00464

DEFENDANT’S SUR-REPLY MARKMAN BRIEF

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 1 of 14
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TABLE OF CONTENTS

I. WSOU MISSTATES CLAIM CONSTRUCTION PRINCIPLES.......................................1

II. THE ’727 CLAIM TERMS ..................................................................................................1

A. “determine / determining ...” (Claims 1 and 11).............................................................1

B. “set of resources” (Claims 1, 6, 7, 11, and 16) .................................................................3

III. THE ’519 CLAIM TERMS ..................................................................................................4

A. “automatically” / “automatic” (Claims 1 and 12).............................................................4

IV. THE ’758 CLAIM TERMS ..................................................................................................6

A. “accessing, dynamically, ...” (Claim 1) and “dynamically 

determining a rule for charging a sponsor of said communication service” 

(Claims 8 and 10)......................................................................................................................6

B. “a plurality of parameter values ... for communication services ...” 

(Claims 1 and 8) and “a plurality of parameter values ... for the 

communication service ...” (Claims 18 and 19).......................................................................7

C. “a first cost ...” (Claim 2).................................................................................................8

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 2 of 14
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TABLE OF AUTHORITIES

Page(s)

Cases

Akzo Nobel Coatings, Inc. v. Dow Chemical Co.,

811 F. 3d 1334 (Fed. Cir. 2016)..........................................................................................................5

Infinity Computer Prods. v. Oki Data Ams., Inc.,

No. 2020-1189, 2021 WL 476067 (Fed. Cir. Feb. 10, 2021) .........................................................4, 5

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)...............................................................................................1, 2, 3, 8

Toshiba Corp. v. Imation Corp.,

681 F.3d 1369 (Fed. Cir. 2012)...........................................................................................................2

Trs. of Columbia Univ. in City of New York v. Symantec Corp.,

811 F.3d 1359 (Fed. Cir. 2016)...................................................................................................1, 3, 8

UltimatePointer, L.L.C. v. Nintendo Co., Ltd.,

816 F.3d 816 (Fed. Cir. 2016).............................................................................................................3

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 3 of 14
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Microsoft submits this sur-reply in support of its proposed claim constructions addressing 

terms of U.S. Patent No. 7,106,727 (“the ’727 patent”) and U.S. Patent Nos. 7,706,519 (the ’519 

patent”) and 8,625,758 (“the ’758 patent”). WSOU contends only that “plain and ordinary” 

meaning applies as to each term, but that is inaccurate and insufficient, as Microsoft explains 

further below.1

I. WSOU MISSTATES CLAIM CONSTRUCTION PRINCIPLES

Explicit redefinition or disavowal is not required for claim construction. See Trs. of 

Columbia Univ. in City of New York v. Symantec Corp., 811 F.3d 1359, 1363 (Fed. Cir. 2016). A 

claim term must be understood “not only in the context of the particular claim in which the 

disputed term appears, but in the context of the entire patent, including the specification.” 

Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). Claims do not stand alone, but are 

part of a fully integrated written instrument. Id. at 1315. Hence, “the specification is always 

highly relevant” and “is often the best guide to the meaning of a disputed term.” Trs. of 

Columbia Univ., 811 F.3d at 1365. “Even when guidance is not provided in explicit definitional 

format, the specification may define claim terms by implication such that the meaning may be 

found in or ascertained by a reading of the patent documents.” Id. at 1364 (citing Phillips, 415 

F.3d at 1320-21). 

II. THE ’727 CLAIM TERMS

A. “determine / determining ...” (Claims 1 and 11)

Claim Language Microsoft’s Proposed Construction

determine/determining a measure of the 

plurality of calls

measuring the number and type of calls on the 

network 

 1 Emphases are added throughout, unless otherwise indicated.

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The parties agree on the fundamental concept behind Microsoft’s proposed construction:

that “determining a measure of the plurality of calls” means measuring certain aspects of the 

calls currently on a network (so that the network resources can be allocated or reallocated as 

necessary). This is consistent with the solution to the problem identified by the ’727 patent.

The remaining dispute is whether “the number and type of calls” accurately captures the 

aspects of the network traffic being measured. It does. The portion of the specification at 4:31-52 

that WSOU points to, and to which Microsoft cited at page 4 of its responsive brief, is entirely 

consistent. Fundamental to the proposed solution of the patent and this specification excerpt is 

knowing the type of calls on the network: circuit-switched or packet-switched. As to the number 

of calls, the bits per second, percentage of distribution of circuit-switched versus packet-switched 

traffic, count of circuit-switched versus packet-switched calls, and percentage distribution by 

bandwidth of circuit-switched versus packet-switched calls are all examples of different ways to 

capture information about the number of calls on the network. “Any measure of traffic or calls as 

known in the art” accounts for the possibility of other specific measurements that could be taken 

to identify how much of each type of call is on the network at that time. Microsoft’s proposed 

construction is non-limiting, leaving open-ended how the measurement is performed or what 

measurement is specifically used to identify the amount of traffic currently on the network, while 

accurately describing what is being measured (i.e., the number and type of calls).

Toshiba Corp. v. Imation Corp., 681 F.3d 1369 (Fed. Cir. 2012) does not dictate 

otherwise. As described above in Section I, claim construction requires terms to be understood 

“in the context of the entire patent, including the specification.” Phillips, 415 F.3d at 1313. All 

the evidence in the patent specification regarding the meaning of the term “determining a 

measure of the plurality of calls” supports that certain aspects of the calls currently on a network

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 5 of 14
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must be measured, and the aspects of those calls that must be measured are described as falling 

within only two categories (e.g., the number and type of calls). Microsoft’s proposed 

construction should be adopted. Trs. of Columbia, 811 F.3d at 1364.

B. “set of resources” (Claims 1, 6, 7, 11, and 16)

Claim Language Microsoft’s Proposed Construction

set of resources a part of a pool of physical network resources, each capable 

of handling circuit-switched and packet-switched formats 

As WSOU acknowledges, the asserted claims require allocating a first and second set of 

resources from a plurality (i.e., a pool) of resources. WSOU Reply Brief (“Reply Br.”) at 3. 

Contrary to its assertion that each resource need not be capable of handling either circuitswitched or packet-switched calls, the portion of the specification that WSOU cites in the very 

next sentence confirms Microsoft’s proposed construction. The only way that “network switches 

103 allocate and reallocate the resources linking the switches 103 between circuit-switched 

resources and packet-switched resources” is if the resources in the available pool are capable of 

handling both types of calls. This is in line with the specification’s explicit statement that “each 

physical resource is capable of handling circuit-switched and packet-switched formats.” ’727 

patent at 3:26-30. Nowhere is there any disclosure that the network resources might not be 

capable of handling both formats. See Phillips, 415 F.3d at 1316 (“In light of the statutory 

directive that the inventor provide a ‘full’ and ‘exact’ description of the claimed invention, the 

specification necessarily informs the proper construction of the claims.”); see also, 

UltimatePointer, L.L.C. v. Nintendo Co., Ltd., 816 F.3d 816, 824 (Fed. Cir. 2016) (citing 

Decisioning.com, Inc. v. Federated Dep't Stores, Inc., 527 F.3d 1300, 1308 (Fed. Cir. 2008))

(interpreting a claim consistent with the disclosure of the specification, even when a broad 

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 6 of 14
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interpretation that is not supported by the specification would be plausible if the term were 

“[d]ivorced from the specification”).

The claimed network resources are only ever referred to as “physical” resources, both in 

the specification and during prosecution. Indeed, the applicant explained to the patent examiner 

that the claimed “resources” referred to “the infrastructure used to provide services” as a general 

matter, not limiting the explanation to an embodiment. Microsoft Responsive Brief (“Resp. Br.”)

Ex. 2 at 3.

III. THE ’519 CLAIM TERMS

A. “automatically” / “automatic” (Claims 1 and 12)

Claim Language Microsoft’s Proposed Construction

“automatically” / “automatic” Indefinite 

Although WSOU still resists offering a construction for any of these phrases, its reply 

implies that it believes that the claims use “automatic” to mean “occur without the user being 

involved.” Reply Br. at 4. Microsoft agrees that, on its own, “automatic” can mean “without the 

user being involved. But this limited common ground does not render the claims definite. 

WSOU makes no attempt to address the terms as they are actually used: not in isolation, 

but in the context of claim elements (i.e., automatically connected to a packet-based network,

automatically indexing together..., automatically associated with..., and automatically accessed 

pursuant to call routing of a call...). See Infinity Computer Prods. v. Oki Data Ams., Inc., No. 

2020-1189, 2021 WL 476067, at *8 (Fed. Cir. Feb. 10, 2021) (“Yet the indefiniteness here does 

not reside in the term ‘passive link’ or ‘computer’ on its own but rather in the relationship 

between the two in the context of these claims). None of the “exemplary embodiments” cited by 

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 7 of 14
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WSOU (Reply Br. at 4-5) uses the terms “automatic” or “automatically,” and WSOU does not 

attempt to explain how the passages give definite meaning to the claims. 

WSOU also wholly declines to explain what role the “automatically” and “automatic” 

amendment played in obtaining allowance over the prior art (e.g., U.S. Pat. 5,889,845 to Staples, 

U.S. Pat. Pub. No. 2003/0165145 to Cho) and the double-patenting rejection (over U.S. Pat.

7,460,658). Instead, its reply injects more uncertainty by suggesting that these terms were added 

to the claims, not necessarily to overcome the Examiner’s rejections, but for some other, 

unarticulated reason “purely in the interest of expediting the prosecution of the instant 

invention.” Reply Br. at 4 (citing Ex. 4 at 15). This is prosecution boilerplate and obfuscates the 

linkage between amended claims and associated arguments. If WSOU’s representation is to be 

credited (which it should not), it would contradict the basic presumption that a recited claim term 

is presumed to have some meaning. See Akzo Nobel Coatings, Inc. v. Dow Chemical Co., 811 F. 

3d 1334, 1340 (Fed. Cir. 2016) (citing Merck & Co. v. Teva Pharm. 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”).

At bottom, WSOU seeks to preserve the uncertain meaning of a legal instrument, the 

’519 patent, that is legally defined by its public notice function. See Infinity Computer Prods., 

No. 2020-1189, 2021 WL 476067, at *7-8 (holding a claim to be indefinite based on 

contradictory statements made during prosecution and later reexamination). WSOU’s new 

reliance on prosecution boilerplate renders the actual metes and bounds of the “automatically” 

and “automatic” terms hopelessly vague and the claims, which were specifically amended to 

include these terms, indefinite.

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 8 of 14
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IV. THE ’758 CLAIM TERMS

A. “accessing, dynamically, ...” (Claim 1) and “dynamically determining a rule 

for charging a sponsor of said communication service” (Claims 8 and 10)

Claim Language Microsoft’s Proposed Construction

accessing, dynamically, a rule for charging 

a sponsor of said communication services

selecting in real-time which rule from a set of rules 

is applicable for charging a sponsor of said 

communication service 

dynamically determining a rule for 

charging a sponsor of said communication 

service

selecting in real-time which rule from a set of rules 

is applicable for charging a sponsor of said 

communication service 

Microsoft has thoroughly explained the patent’s disclosures that require real-time access 

of the applicable charging rule. Resp. Br. at 15-17. Indeed, that goes to the entire purpose of the 

patent. See ’758 at 1:44-54 (describing the “main idea of the invention” as a service in which a 

rule for charging a sponsor is “determined dynamically” allowing sponsorship to be “very 

flexible in terms of amount of sponsorship and sponsored party” and to make available the 

service to users “directly e.g. without any delay”); EX. 8 at 7-8 (“the present application is 

directed toward a flexible, dynamic method that facilitates a sponsor totally, or partially, 

sponsoring communication services of a communications service user” including “a mechanism 

for a portion of communication service charges, to be paid for by a sponsor, to be determined 

through the use of a multi-dimensional rule and without delaying the provision of the 

communication service”).

Microsoft also explained previously that there must be a set of rules from which the 

applicable rule is selected. Resp. Br. at 16-17. A rule must exist before it can be accessed or 

found. However, Microsoft’s proposed construction does not limit how a rule comes into 

existence. WSOU’s second argument in this portion of its reply brief simply manufactures a 

dispute that does not exist. 

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 9 of 14
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B. “a plurality of parameter values ... for communication services ...” (Claims 

1 and 8) and “a plurality of parameter values ... for the communication 

service ...” (Claims 18 and 19)

Claim Language Microsoft’s Proposed Construction

a plurality of parameter values including at 

least one respective value of at least one 

respective parameter other than an identity of 

an originator of the request for 

communication services, an intended 

recipient of a communication of the 

requested communication services and an 

identity of the sponsor

a plurality of parameter values, one of which 

must be something other than the location/ 

country code of the phone number of an 

originator of the request for communication 

services, the location/ country code of the 

phone number of the intended recipient of a 

communication of the requested 

communication services, or the identity of 

the sponsor

a plurality of parameter values including at 

least one respective value of at least one 

respective parameter other than an identity of 

an originator of a request for the 

communication service, an intended recipient 

of a communication of the requested 

communication service and an identity of the 

sponsor

a plurality of parameter values, one of which 

must be something other than the location/ 

country code of the phone number of an 

originator of the request for communication 

services, the location/ country code of the 

phone number of the intended recipient of a 

communication of the requested 

communication services, or the identity of the 

sponsor 

Microsoft’s proposed construction for these terms is actually quite straightforward, 

notwithstanding WSOU’s attempts at obfuscation. The claim term as written is a negative 

limitation: the “plurality of parameter values” must include a parameter that is something other 

than (1) the location/country code of the caller’s phone number, (2) the location/country code of 

the recipient’s phone number, and (3) the sponsor’s identity. Any other parameter is fair game, 

both under the patent specification and under Microsoft’s proposed construction. 

WSOU takes issue with terminology used in Microsoft’s responsive brief discussing 

“local, national, or international phone number,” claiming that is inconsistent with Microsoft’s 

proposed construction that specifies “location/country code of the phone number.” Reply Br. at 

7. But it should be undisputed that a phone number includes an area code and/or country code. 

No inconsistency exists.

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 10 of 14
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As to WSOU’s query regarding the particulars of Microsoft’s proposal, the patent 

specification and the prosecution history unequivocally describe that phone number information 

– which includes location information provided by country and/or area codes – identifies both a 

call originator and a call recipient. Resp. Br. at 13-14; see also, WSOU Opening Brief (“Op. 

Br.”) at 7 (“exemplary identifiers are phone numbers”). WSOU has no response, except to fall 

back to its misguided arguments regarding disclaimer and lexicography that ignore the long held 

principle of claim construction requiring terms to be understood “in the context of the entire 

patent, including the specification.” Phillips, 415 F.3d at 1313. Explicit disclaimer or redefinition 

is not required. Trs. of Columbia, 811 F.3d at 1364. Because the only disclosure in the patent 

specification and prosecution history regarding the scope of “an identity of an originator of the 

request for communication services” or “an intended recipient of a communication” discloses 

that such parameters include “local, national, or international phone number,” Microsoft’s 

proposed construction is proper and should be adopted. Id. 

C. “a first cost ...” (Claim 2)

Claim Language Microsoft’s Proposed Construction

a first cost for the usage of said communication 

service is charged at least partially to said sponsor, 

by determining a second cost, the second cost 

depending on said rule and said first cost

Indefinite

WSOU’s reply proves Microsoft’s point that claim 2 is indefinite. Under WSOU’s

interpretation of the language of this claim term, “it is the second cost that is charged to the 

sponsor, not the first cost,” and it points to an example in the specification in support of this 

position. Reply Br. at 9.2 Microsoft does not dispute that the cited portions of the specification 

 2 WSOU’s argument that the first cost is not charged to the sponsor results in reading out from 

the claim the situation where a first cost is charged in its entirety to the sponsor—“at least 

partially” clearly contemplates that the entire first cost may be charged. 

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 11 of 14
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describe calculating a second cost that depends on the rule and the first cost, and then charging 

the sponsor the second cost. 

But that is not what the claim language recites. According to the plain language of the 

claim, “a first cost for the usage of said communication service is charged at least partially to 

said sponsor.” It requires that the first cost be charged to the sponsor by determining a second 

cost. But that second cost depends on the first cost, in part. As written, the claim leaves the 

reader with a chicken-and-the-egg dilemma—what is the first cost, if it depends on the second 

cost, which depends on the first cost? The specification and prosecution history are of no help.

The claim language never says that the second cost is charged to the sponsor, as WSOU 

contends in an attempt to save the claim, and WSOU does not explain why the example it plucks 

from the specification should be sufficient to fundamentally change the meaning of words of the 

claim language as written.

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 12 of 14
DATED: February 24, 2021 By: /s/ Irene Yang

Barry K. Shelton 

Texas State Bar No. 24055029 

SHELTON COBURN LLP

311 RR 620 S, Suite 205 

Austin, TX 78734 

Telephone: (512) 263-2165 

Fax: (512) 263-2166 

bshelton@sheltoncoburn.com 

Of Counsel 

Michael J. Bettinger

Irene Yang

SIDLEY AUSTIN LLP

555 California St., Suite 2000 

San Francisco, CA 94104 

Telephone: (415) 772-1200 

Fax: (415) 772-7400 

mbettinger@sidley.com 

irene.yang@sidley.com 

Richard A. Cederoth 

John W. McBride

SIDLEY AUSTIN LLP

1 South Dearborn St. 

Chicago, IL 60603 

Telephone: (312) 853-7000 

Fax: (312) 853-7036 

rcederoth@sidley.com 

jwmcbride@sidley.com 

Attorneys for Defendant Microsoft Corporation

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 13 of 14
CERTIFICATE OF SERVICE

I certify that on February 24, 2021, I electronically filed the foregoing with the Clerk of 

Court using the CM/ECF system, which will send notification of such filing to all counsel of 

record as identified below.

/s/ Irene Yang

Irene Yang

Case 6:20-cv-00462-ADA Document 52 Filed 02/24/21 Page 14 of 14