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. 

HUAWEI TECHNOLOGIES USA INC., 

et al., 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

CIVIL ACTION No. 6:20-CV-541-ADA 

CIVIL ACTION No. 6:20-CV-544-ADA 

 

DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 1 of 26
TABLE OF CONTENTS

Page

 -iI. U.S. Patent No. 8,429,480 (“the ’480 Patent”) (Case No. 6:20-cv-00544) ....................... 1 

A. “hybrid automatic repeat request process” (claims 1, 2, 5, 6, 7, 9, 11-19) ............ 1 

i. “Stop and Wait” and “Soft Combining” Are Not Merely Passing 

References But Are Used to Summarize Fundamental Mechanisms 

of a HARQ Process .................................................................................... 2 

ii. Huawei’s Proposed Construction is Consistent with the 

Specification and 3GPP Standards............................................................. 3 

iii. Huawei’s Invalidity Arguments in the IPR Petition are Consistent 

with Huawei’s Proposed Construction ....................................................... 5 

B. “the resources are persistently allocated for transmitting the new uplink 

packet transmission” (claim 2) ............................................................................... 6 

i. Claim 2 Fails to Further Limit and is Inconsistent with Claim 1 

(Section 112, ¶ 4) ....................................................................................... 6 

ii. Claim 2 Fails to Inform a POSITA of the Scope of the Invention to 

a Reasonable Certainty (Section 112, ¶ 2) ................................................. 9 

II. U.S. Patent No. 9,084,199 (“the ’199 Patent”) (Case No. 6:20-cv-00541) ..................... 10 

A. “associated with a quality of the received CQI” (claims 1, 9) / “associated 

with a quality of the received channel quality indicator (CQI)” (claim 15) ........ 11 

B. “dynamically adjust a CQI channel configuration based on the 

comparison” (claims 1, 9) .................................................................................... 13 

C. “generated by filtering frame based quality metrics over a plurality of 

frames” (claim 1) / “generated by filtering frame based quality metrics 

over a period of more than one frame” (claim 9) ................................................. 16 

D. “means for generating soft decision quality metrics from a decoding 

process for received channel quality indicator (CQI)” (claim 9) ......................... 17 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 2 of 26
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TABLE OF AUTHORITIES

 Page(s) 

Cases 

Finjan, Inc. v. Juniper Networks, Inc., 

No. C 17-05659, Dkt. 491 (N.D. Cal. May 8, 2019) .................................................................5 

Gillette Co. v. Energizer Holdings, Inc., 

405 F.3d 1367 (Fed. Cir. 2005)..................................................................................................9 

Holdings, Inc. v. Berry Plastics Corp., 

831 F.3d 1350 (Fed. Cir. 2016)..................................................................................................6 

Huawei Technologies Co., Ltd. v. WSOU Investments LLC d/b/a Brazos Licensing 

and Development, 

IPR2021-00229 ..........................................................................................................................5 

Markman v. Westview Instruments, Inc., 

52 F.3d 967 (Fed. Cir.1995).......................................................................................................9 

Mettler-Toledo, Inc. v. B-Tek Scales, LLC, 

671 F.3d 1291 (Fed. Cir. 2012)................................................................................................19 

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

134 S. Ct. 2120 (2014) ...............................................................................................................9 

O2 Micro International Ltd. v. Beyond Innovation Technology Co., 

521 F.3d 1351 (Fed. Cir. 2008)............................................................................................2, 11

Pfizer, Inc. v. Ranbaxy Labs. Ltd., 

457 F.3d 1284 (Fed. Cir. 2006)..................................................................................................6 

Phillips v. AWH Corp., 

415 F.3d 1303 (Fed. Cir. 2005)................................................................................................15 

Retractable Technologies, Inc. v. Becton, Dickinson & Co., 

653 F.3d 1296 (Fed. Cir. 2011) (Fed. Cir. 2011) .....................................................................15 

Shire Development LLC, et al., v. Teva Pharmaceuticals USA, Inc., et al., 

2019 WL 969638 (D. DE. Feb. 28, 2019) .................................................................................5 

Tanabe Seiyaku Co., Ltd v. U.S. I.T.C., 

109 F.3d 726 (Fed. Cir. 1997)....................................................................................................9 

Teleflex, Inc. v. Ficosa N. Am. Corp., 

299 F.3d 1313 (Fed. Cir. 2002)................................................................................................17 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 3 of 26
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Ultravision Techs., LLC v. Lamar Advert. Co., 

2017 WL 3836139 (E.D. Tex. Apr. 18, 2017) ...........................................................................6 

V-Formation, Inc. v. Benetton Grp. SpA, 

401 F.3d 1307 (Fed. Cir. 2005)..................................................................................................9 

Wellman Inc. v. Eastman Chem. Co., 

642 F.3d 1355 (Fed. Cir. 2011)................................................................................................15 

Williamson v. Citrix Online, LLC, 

792 F.3d 1339 (Fed. Cir. 2015) (en banc) ...............................................................................19 

Statutes 

35 U.S.C. § 112(d) ...........................................................................................................................6 

35 U.S.C. § 112, ¶ 4 .........................................................................................................................6 

35 U.S.C. § 112, ¶ 6 .................................................................................................................17, 18 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 4 of 26
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TABLE OF EXHIBITS 

Exhibit Description 

Ex. 1 3GPP TS 36.321 v8.2.0 (2008-05), “3rd Generation Partnership Project; 

Technical Specification Group Radio Access Network; Evolved Universal 

Terrestrial Radio Access (E-UTRA) and Evolved Universal Terrestrial 

Access Network (E-UTRAN); Medium Access Control (MAC) protocol 

specification (Release 8)” (“TS 36.321”) 

Ex. 2 3GPP TS 36.213 v8.3.0 (2008-05), “3rd Generation Partnership Project; 

Technical Specification Group Radio Access Network; Evolved Universal 

Terrestrial Radio Access (E-UTRA) and Evolved Universal Terrestrial 

Access Network (E-UTRAN); Physical layer procedures (Release 8)” (“TS 

36.213”) 

Ex. 3 Huawei Technologies Co., Ltd. v. WSOU Investments LLC d/b/a Brazos 

Licensing and Development, IPR2021-00229, Pet. For Inter Partes Review 

Ex. 4 Huawei’s Preliminary Claim Constructions 

Ex. 5 Declaration of James A. Proctor regarding Claim Construction 

Ex. 6 01/19/2011 Communications from Examining Division (EP Prosecution 

History for EP Application No. 08835383.4) 

Ex. 7 02/05/2011 Response to Communications (EP Prosecution History for EP 

Application No. 08835383.4) 

Ex. 8 Appl. Ser. No. 10/954,755, 8/11/09 Appeal Brief 

Ex. 9 Appl. Ser. No. 10/954,755, Patent Application Transmittal 

Ex. 10 Appl. Ser. No. 10/954,755, 05/21/2007 Office Action 

Ex. 11 Appl. Ser. No. 10/954,755, 12/10/2008 Office Action 

Ex. 12 Appl. Ser. No. 10/954,755, 11/13/2009 Office Action 

Ex. 13 Webster’s New World College Dictionary (4th ed. 1999), definition of 

“filtering” (at 530) 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 5 of 26
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Pursuant to the deadline set forth in the Scheduling Order (Dkt. 34), and the guidelines 

regarding claim construction set forth in the Order Governing Proceedings in Patent Cases 

(“OGP”) (Version 3.2), Defendants Huawei Technologies USA Inc., et al., (collectively, 

“Huawei”) respectfully submit this Responsive Claim Construction Brief to Plaintiff’s 

(“WSOU’s”) Opening Claim Construction Brief (“Opening Brief”) (See, e.g., -00544, Dkt. 45).1 

I. U.S. Patent No. 8,429,480 (“the ’480 Patent”) (Case No. 6:20-cv-00544) 

The ’480 Patent is directed to the problem of collisions that may occur during the same 

uplink subframe between transmissions from one user equipment (“UE”) to a base station (“eNB” 

or “eNodeB”). See ’480 Patent, Abstract and Figs. 2-3. In particular, the collisions may occur 

between a new transmission of packets (e.g., Voice over Internet Protocol (“VoIP”) packets) as 

persistently or semi-persistently allocated, and a hybrid automatic repeat request (“HARQ”) retransmission of packets. See id., Figs. 2-3 and 2:27-32. To resolve this problem, the ’480 Patent 

proposed techniques for “performing UE [] specific load balancing among HARQ processes, in 

particular for the case of semi-persistent scheduling the LTE TDD UL.” Id., 6:33-35. In particular, 

“the re-transmission packet is transmitted during the time at which a collision would occur, and 

the new transmission packet is dynamically scheduled to a new resource in another, different 

HARQ process.” Id., 6:40-43 and Fig. 3. 

A. “hybrid automatic repeat request process” (claims 1, 2, 5, 6, 7, 9, 11-19) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“process implementing a stop and wait 

protocol and soft combining where in the 

uplink a UE adjusts the PUSCH transmission 

Plain and ordinary meaning 

 

1

 This Brief addresses the disputed claim terms (that the parties were collectively permitted 

to present to the Court for resolution pursuant to the OGP (Version 3.2)) for Case Nos. 6:20-cv00541 and -00544. 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 6 of 26
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according to PDCCH and/or PHICH 

information as detected by the UE” 

The parties’ dispute centers on whether the phrase “hybrid automatic repeat request 

process” (“HARQ process”) is self-defining, and thus should be given its “plain and ordinary 

meaning.” It is not, and thus a construction of “plain and ordinary meaning” is not appropriate for 

this term. WSOU’s Opening Brief makes clear that WSOU’s contends that the claimed HARQ 

process involves “‘a new uplink packet transmission’ that may potentially collide with ‘a hybrid 

automatic repeat request function’” — which is inconsistent with a HARQ process as defined in 

the ’480 Patent and 3GPP Standards. Opening Brief, at 3. As such, there is a dispute between the 

parties as to the scope of this term that must be addressed. 

i. “Stop and Wait” and “Soft Combining” Are Not Merely 

Passing References But Are Used to Summarize Fundamental 

Mechanisms of a HARQ Process 

 Confusion regarding who collides with what involving a HARQ Process cannot be 

eliminated without spelling out its fundamental mechanisms in a proposed construction. See O2 

Micro International Ltd. v. Beyond Innovation Technology Co., 521 F.3d 1351, 1361 (Fed. Cir. 

2008) (“determination [of] a claim term[‘s] . . . ‘plain and ordinary meaning’ may be inadequate 

when a term has more than one ‘ordinary’ meaning or when reliance on a term’s ‘ordinary’ 

meaning does not resolve the parties’ dispute”). The invention of the ’480 Patent closely relates 

to 3GPP Standards. See ’480 Patent, 4:54-5:59 (“[r]eference with regard to the teachings of this 

invention can be made to 3GPP TS 36.321 v8.2.0 (2008 May) . . . 3GPP TS 36.213 v8.3.0 . . .”) 

(emphasis added). 

According to both the specification of the ’480 Patent and 3GPP Standards, “stop and wait 

protocol” and “soft combining” are the fundamental mechanisms of a HARQ process. See id., 

2:6-10 (“a hybrid ARQ (HARQ) protocol . . . namely N parallel hybrid ARQ processes, each 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 7 of 26
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implementing a SAW [stop and wait] protocol. Each hybrid ARQ process has a certain amount of 

soft buffer memory in order to implement soft combining.”) and 4:66-5:4 (“A number of parallel 

HARQ processes are used in the UE to support the HARQ entity, allowing transmissions to take 

place continuously while waiting for the feedback on the successful or unsuccessful reception of 

previous transmissions.”); see also Ex. 1, 3GPP TS 36.321 v.8.2.0 (“36.321”), §5.3.2.2 (“combine 

the received data with the data currently in the soft buffer for this HARQ process”) and §5.4.2.1 

(“A number of parallel HARQ processes are used in the UE to support the HARQ entity, allowing 

transmissions to take place continuously while waiting for the feedback on the successful or 

unsuccessful reception of previous transmissions.”). These are not merely “passing references” as 

suggested by WSOU, but are terms used to summarize fundamental mechanisms of a HARQ 

process. For example, the specification cites to TS 36.321 and TS 36.213 to explain a HARQ 

process where a new transmission or a re-transmission is transmitted in response to the received 

ACK/NACK information and/or uplink grant. See ’480 Patent, 5:4-59. 

ii. Huawei’s Proposed Construction is Consistent with the 

Specification and 3GPP Standards 

With respect to “where in the uplink a UE adjusts the PUSCH transmission according to 

PDCCH and/or PHICH information as detected by the UE,” this phrase is a summary of a HARQ 

process as provided by the specification of the ’480 Patent, 5:4-59, and is fully supported by the 

3GPP Standards. The ’480 Patent specifies that a UE would determine whether to proceed with 

new transmissions or re-transmissions on PUSCH based on what it receives on PHICH (ACK or 

NACK) or PDCCH (e.g., uplink grants). See id., 5:4-59 (“if an uplink grant indicating that the 

NDI has been incremented . . . obtain the MAC PDU . . . if an uplink grant, indicating that the NDI 

is identical . . . instruct the HARQ process to generate an adaptive retransmission . . . if ACK is 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 8 of 26
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decoded on the PHICH . . . else NACK shall be delivered . . . .”) Such a complicated HARQ 

process is summarized concisely by 3GPP TS 36.213, v.8.3.0, as follows: 

For FDD, there shall be 8 HARQ processes in the uplink. For FDD, the UE shall 

upon detection of a PDCCH with DCI format 0 and/or a PHICH transmission in 

subframe n intended for the UE, adjust the corresponding PUSCH transmission

in subframe n+4 according to the PDCCH and PHICH information. . . 

For TDD UL/DL configurations 1-6, the UE shall upon detection of a PDCCH 

with DCI format 0 and/or a PHICH transmission in subframe n intended for the 

UE, adjust the corresponding PUSCH transmission in subframe n+k, with k given 

in Table 8-2, according to the PDCCH and PHICH information . . . . 

Ex. 2, TS 36.213, § 8 (emphasis added). Huawei’s proposed construction thus closely tracks what 

has been taught by the specification and disclosed in the 3GPP Standards. 

 With respect to “in an uplink,” WSOU argues that the ’480 Patent does not require an 

adjustment that must occur within the uplink itself. See Opening Brief, at 4-5. However, Huawei’s 

proposed construction does not require that — it simply provides a concise summary of a HARQ 

process in an uplink direction because the claims in the ’480 Patent are in the context of uplink, 

and Huawei’s proposed construction does not exclude the possibility that a HARQ can also be 

implemented in a downlink direction. See e.g., ’480 Patent, claim 1 (“a collision between an 

uplink packet re-transmission and a new uplink packet transmission”) and claim 11 (“using a 

semi-persistently scheduled uplink resource”) (emphasis added). 

 WSOU further contends that Huawei’s proposed construction is inconsistent with 3GPP 

Standards based on WSOU’s belief that a new transmission in a HARQ process does not require 

“soft combining.” See Opening Brief, at 6 (citing TS 36.321, §5.3.2.2 and a 3GPP documentation 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 9 of 26
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dated 2000)2. WSOU’s assertion is bizarre, and more importantly, is incorrect. “Soft combining” 

means “to combine the received data with the data currently in the soft buffer.” Ex. 1, TS 36.321, 

§5.3.2.2. Without receiving a new transmission and storing it in a soft buffer, there will be nothing 

to combine for a re-transmission. In other words, handling a new transmission is also part of a 

HARQ process. 

iii. Huawei’s Invalidity Arguments in the IPR Petition are 

Consistent with Huawei’s Proposed Construction 

WSOU attempts to make much of the fact that Huawei did not construe this term in the 

parallel IPR proceedings involving the ’480 Patent (“IPR Proceedings”). See Opening Brief, at 4. 

However, in its IPR petition, Huawei has asserted that multiple prior art references, including 

3GPP Standards related documents, discloses a HARQ process. See generally Ex. 3, “Huawei 

Technologies Co., Ltd. v. WSOU Investments LLC d/b/a Brazos Licensing and Development, 

IPR2021-00229, Pet. For Inter Partes Review” (PTAB filed Nov. 30, 2020) (“IPR Petition”). 

Therefore, it is unnecessary to construe the current term in the IPR proceedings, and WSOU would 

not be prejudiced by any inconsistency as alleged. See Ex. 14, Finjan, Inc. v. Juniper Networks, 

Inc., No. C 17-05659, Dkt. 491, at 10 (N.D. Cal. May 8, 2019) (holding that it is not fatal for the 

same expert to further construe a claim term in the district court case although the same term was 

not specifically proposed for construction in a parallel IPR proceeding); see also Shire 

Development LLC, et al., v. Teva Pharmaceuticals USA, Inc., et al., 2019 WL 969638, at *8 (D. 

 

2

 The 3GPP documentation cited by WSOU (“3GPP Meeting Document”) (see Opening 

Brief, at 6) is not a final 3GPP Standards document. It is a document dated 2000 and is only for 

discussion. According to the 3GPP Meeting Document, “hybrid ART (HARQ) was approved as 

one working item for Release 2000 work.” Ex. D. to Opening Brief, 3GPP Meeting Document, at 

1 (emphasis added). In other words, at that time, HARQ has not been standardized into a final 

Standard document. Further, the “Type I hybrid ARQ without combining” as discussed is “[t]he 

ARQ method used in the current 3GPP specification.” Id. In other words, it is an outdated ARQ 

method (around 2000), and so is not a HARQ implementing soft combining at or around the time 

of the ’480 Patent. 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 10 of 26
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DE. Feb. 28, 2019) (holding that the statements in IPR proceedings and prosecution history are 

unenlightening when they do not specifically discuss an issue in claim construction). 

Further, Dr. Peter Rysavy’s declaration in the IPR Proceedings does not offer any 

characterization or definition of a HARQ process that conflicts with Huawei’s proposed 

construction here as asserted by WSOU. See Opening Brief, at 5. For example, it is well known 

that FEC (forward error correction) upgrades a standard ARQ and facilities “soft combining.” 

Thus, WSOU’s reference to Huawei’s IPR submission is simply a red herring. 

B. “the resources are persistently allocated for transmitting the new uplink 

packet transmission” (claim 2) 3

Huawei’s Proposed Construction WSOU’s Proposed Construction 

Indefinite4 Plain and ordinary meaning 

i. Claim 2 Fails to Further Limit and is Inconsistent with Claim 1 

(Section 112, ¶ 4) 

“A dependent claim that contradicts, rather than narrows, the claim from which it depends 

is invalid.” Multilayer Stretch Cling film Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 

1362 (Fed. Cir. 2016) (citing, inter alia, 35 U.S.C. § 112(d),5 and holding that a dependent claim 

cannot include low density polyethylene homopolymers (LDPE) because the claim it depends 

upon excludes it); see also Pfizer, Inc. v. Ranbaxy Labs. Ltd., 457 F.3d 1284, 1291-92 (Fed. Cir. 

 

3

 The terms in claims 6, 9, 12, 15, and 18 as listed by WSOU are not disputed terms. See

Ex. 4, “Huawei’s Preliminary Claim Constructions,” at 28 (Huawei’s proposed construction for 

those terms is “[n]o construction necessary”). 

4

 WSOU asserts that Huawei has failed to provide sufficient notice as to indefiniteness 

theories. See Opening Brief, at 7. To the contrary, Huawei identified those claim limitations that 

are indefinite in Huawei’s Preliminary Invalidity Contentions, which is sufficient according to the 

OGP and relevant case law. See OGP, Dkt. 35, at 2; see also Ultravision Techs., LLC v. Lamar 

Advert. Co., 2017 WL 3836139, at *1 (E.D. Tex. Apr. 18, 2017) (holding that contentions only 

need to provide “adequate notice and information with which each party can litigate their cases”). 5

 35 U.S.C. § 112(d) substantially corresponds to pre-AIA 35 U.S.C. § 112, ¶ 4. See 

Multilayer Stretch Cling Film Holding, Inc., 831 F.3d at 1366 (fn. 8). 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 11 of 26
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2006) (holding that a dependent claim cannot cover salts of atorvastatin acid because the claim it 

depends upon only claims atorvastatin acid and not the salts of atorvastatin acid). Here, 

independent claim 1 of the ’480 Patent requires “the hybrid automatic repeat request function 

dynamically allocating resources for transmitting the new uplink packet transmission in a different 

hybrid automatic repeat request process.” ’480 Patent, claim 1 (emphasis added). To the contrary, 

claim 2, which depends from claim 1, requires that the same “resources are persistently allocated 

for transmitting the new uplink packet transmission in the different hybrid automatic repeat request 

process. Id., claim 2 (emphasis added). As will be shown below, the same resources cannot be 

“dynamically” and “persistently” allocated for the same new uplink packet transmission in the 

same hybrid automatic repeat request process. As such, claim 2 is indefinite. 

The specification of the ’480 Patent explicitly provides that dynamically and persistently 

allocating resources are two distinct ways of resource allocation — resources can be either 

dynamically scheduled/allocated by L1/L2 signaling, or persistently pre-defined. For example, 

the specification states “[s]emi-persistent scheduling has also been agreed to for use in LTE, in 

particular for VoIP service, wherein initial/new transmissions of voice packets are persistently

allocated (a set of resources in every 20 ms are predefined) and re-transmissions of packets are 

dynamically scheduled by Layer 1/Layer 2 signaling.” Id., 2:27-32 (emphasis added); see also 

7:7-11 (“It can be further noted that only a new transmission that has collided with a retransmission need be dynamically scheduled to another HARQ process, as other new transmissions 

can occur in the persistent fashion in process #1 if the loading in HARQ process #1 is reasonable.”) 

(emphasis added). 

The above-identified disclosures are also consistent with statements in the 3GPP Standards 

documents and are otherwise known by a POSITA. See Ex. 5, “Declaration of James A. Proctor 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 12 of 26
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regarding Claim Construction,” at ¶¶ 32-36. Since dynamic and persistent allocations are two 

dissimilar ways of resource allocation, “the resources” that have been dynamically allocated for 

transmitting the new uplink packet transmission as required by claim 1 cannot be further limited 

by being persistently allocated as required by claim 2. See id., at ¶¶ 37-43. 

The issue with claim 2 was also raised during the prosecution of an EP counterpart to the 

’480 Patent (“EP Patent”).6 Specifically, the EP examiner stated that “since they refer to 

‘persistently allocating’ resources, which have been defined to be ‘dynamically allocated’ in the 

independent claim on which they depend. There appears to be a contradiction, as dynamically 

and persistently are mutually exclusive.” Ex. 6, “01/19/2011 Communications from Examining 

Division,” at 2 (emphasis added). In response, the patent applicant largely revised claim 2 to 

clarify that “the persistent allocation is for the re-transmissions and takes place only after the 

hybrid automatic repeat request function has dynamically allocated the new resources to the new 

uplink packet transmission.” Ex. 7, “02/05/2011 Response to Communications,” at 3 (excerpt 

reproduced below). 

The patent applicant’s response demonstrates two things: (1) the patent applicant acknowledged 

the conflict between claims 1 and 2, and (2) understood that persistent and dynamic allocations are 

distinct by stating that resources for transmitting the new uplink packet transmission are 

dynamically allocated, but its re-transmissions are persistently allocated. 

 

6

 EP Application No. 08835383.4 (later granted as EP Pat. No. 2201717). 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 13 of 26
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Importantly, claim 2 in the EP Patent (before being revised to overcome the rejections) was 

substantially the same as claim 2 in the ’480 Patent. Therefore, EP prosecution history is very 

relevant to the present dispute. See Tanabe Seiyaku Co., Ltd v. U.S. I.T.C., 109 F.3d 726, 733 

(Fed. Cir. 1997) (explaining that evidence from a foreign procedure should be considered when it 

is relevant to the present proceeding); see also Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 

1367, 1374 (Fed. Cir. 2005) (relying upon the patent applicant’s own endorsement during EP 

prosecution to construe the claims). Moreover, the EP examiner’s rejections were based on the 

“technical” difference between dynamic and persistent allocations — which, like 3GPP Standards, 

is not related to any differences in US and EP patents laws, but are instead universal. Further, the 

communications from the EP examiner is cited on the face of the ’480 Patent and was submitted 

in Information Disclosure Statements during the ’480 Patent prosecution and so should be 

considered as part of the intrinsic evidence. See V-Formation, Inc. v. Benetton Grp. SpA, 401 F.3d 

1307, 1311 (Fed. Cir. 2005); see also Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 

(Fed. Cir.1995) (stating the claims must be construed in light of the specification and the patent’s 

prosecution history). Based on the foregoing, dependent claim 2 is indefinite under 112, ¶ 4. 

ii. Claim 2 Fails to Inform a POSITA of the Scope of the 

Invention to a Reasonable Certainty (Section 112, ¶ 2) 

Claim 2 is further invalid because it fails to inform a POSITA of the scope of the invention. 

See Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2124 (2014). Since claim 2 depends 

from claim 1, claim 2 actually requires: 

detecting with a hybrid automatic repeat request function a collision between an 

uplink packet re-transmission and a new uplink packet transmission within a hybrid 

automatic repeat request process; and 

in response, the hybrid automatic repeat request function dynamically allocating 

resources for transmitting the new uplink packet transmission in a different hybrid 

automatic repeat request process that does not collide with the uplink packet reCase 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 14 of 26
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transmission, wherein the resources are persistently allocated for transmitting the 

new uplink packet transmission in the different hybrid automatic repeat request 

process. 

’480 Patent, Claims 1-2 (emphasis added). A POSITA cannot ascertain whether “the resources” 

are dynamically or persistently allocated in response to a collision because as detailed above, 

dynamic and persistent allocations are mutually exclusive methods for allocating resources. See 

Section I.B.i; see also Ex. 5, Declaration of James A. Proctor regarding Claim Construction, at ¶¶ 

44-45. The specification or prosecution history cannot resolve the conflict because they merely 

confirm the contradiction. Id. As such, claim 2 is (doubly) indefinite and therefore invalid. 

II. U.S. Patent No. 9,084,199 (“the ’199 Patent”) (Case No. 6:20-cv-00541) 

The ’199 Patent generally relates to “baseband signal processing and resource 

management” in high-speed wireless communication systems. See ’199 Patent, Abstract, 1:8-10. 

Within high-speed data transmissions, there exist overhead channels that carry quality and control 

information. See id., 1:20-22. This information includes, among other things, “link quality 

indication, decoding acknowledgment and rate control commands.” Id., 1:22-24. In particular, 

there exists the Reverse Link Channel Quality Indicator Channel (R-CQICH) to “support the high 

speed Forward Link Packet Data Channel” and to carry “information for the Forward Link high 

rate packet data scheduling and call switching.” Id., 1:25-31. During high-speed transmissions, 

wireless units continuously transmit Channel Quality Indicator (CQI) reports to the base station 

via the R-CQICH. See id., 1:32-34, 6:23-44. “The CQI reports are measurements of the Forward 

Link (FL) pilot energy at the wireless unit.” Id., 1:34-35. Thus, it is the quality of R-CQICH that 

is important for system throughput making it advantageous to reduce the power consumed by the 

R-CQICH to improve the overall system capacity. Id., 3:21-31. 

Therefore, the ’199 Patent specifically states that one of its principal objects is to determine 

the optimized CQI channel configurations based on different system deployment scenarios because 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 15 of 26
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“the 3GPP2 standard does not provide a mechanism for determining how to dynamically adjust 

the CQI system or CQI channel configurations based on different system deployment scenarios.” 

Id., 2:48-53 (emphasis added). The ’199 Patent thus claims to disclose and teach systems and 

methods for dynamically adjusting the CQI channel (i.e., R-CQICH) based on the comparison 

between quality metrics of the R-CQICH carrying the CQI and thresholds. Id., 4:14-17. Before 

performing the dynamic adjustment of the R-CQICH, however, the base station needs to generate 

the quality metrics of the R-CQICH and compare the generated quality metrics of the R-CQICH 

to thresholds, and then determine whether to dynamically adjust the R-CQICH channel based on 

the comparison. See id., 6:34-7:5. 

A. “associated with a quality of the received CQI” (claims 1, 9) / “associated 

with a quality of the received channel quality indicator (CQI)” (claim 15) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“associated with a quality of the received CQI 

channel” 

Plain and ordinary meaning 

As is evident by the inconsistent and unclear use of the phrase “quality of the received 

channel quality indicator” within the relevant claims themselves, a construction of “plain and 

ordinary meaning is not appropriate” for these terms. See O2 Micro Int’l Ltd., 521 F.3d at 1361 

(“[a] determination that a claim term ‘needs no construction’ or has the ‘plain and ordinary 

meaning’ may be inadequate when a term has more than one ‘ordinary’ meaning or when reliance 

on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”). The concept of associating 

quality metrics with “a quality of a received [channel quality indictor] is nonsensical – the CQI is 

an indicator and does not itself have a “quality.” 

Thankfully, the specification of the ’199 Patent clears up the confusion by explaining that 

the generated quality metrics are those associated with the CQI channel, and by consistently using 

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the phrase “CQI channel” when referring to the generated metrics, the specification clarifies that 

the claimed metrics are those for the CQI channel. See e.g., ’199 Patent, 3:43-44 (“Accordingly, 

it may be advantageous to generate frame based CQI channel quality metrics for differential 

reports in addition to the full reports.”) (emphasis added); 3:55-58 (“Accordingly, under the 

present techniques, metrics may be provided for full and differential modes to maintain the quality 

of the R-CQICH. These metrics may be utilized to dynamically adjust system or CQI channel

configurations and power settings.”) (emphasis added); 4:2-4 (“The updated CQI channel or 

system configurations may affect both the base station and the wireless unit.”) (emphasis added) 

Huawei’s proposed construction should thus be adopted because it clarifies the “quality of a 

quality” ambiguity that the “plan and ordinary meaning” fails to resolve. 

WSOU’s Opening Brief takes issue with Huawei’s proposed construction because of the 

inclusion of the word “channel” in Huawei’s proposed construction, and contends that this term is 

not required by the claim language. See Opening Brief, at 9. Yet Huawei’s inclusion of the word 

“channel” clarifies that these limitations are directed to the “quality of the received CQI channel,” 

or, put another way, the “quality of a channel carrying the received CQI,” rather than a “quality

of a [channel quality indicator].” Huawei’s construction further clears up the inherent ambiguity 

that necessarily results from a “plain and ordinary” reading of these phrases – requiring a “quality 

of a quality.” The word “channel,” drawn from the specification, is required to understand what 

is meant by the otherwise ambiguous phrase and defines the meaning of “quality of the received 

CQI.”7

 

 

7

 WSOU’s only other complaint against Huawei’s construction is the lack of the definite 

article “the.” That issue, however, is a red herring, as the omission is due to a simple typo made 

during the parties’ exchange of proposed constructions. As clarified above, Huawei’s proposed 

construction for this phrase is “associated with a quality of the received CQI channel.” 

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Should the Court adopt WSOU’s proposed construction of “plain and ordinary meaning,” 

the purpose of the invention would be frustrated. The specification of the ’199 Patent demonstrates 

that it is the quality metrics of the R-CQICH channel carrying the CQI that are to be used for the 

purpose of dynamically adjusting the CQI channel configuration. See ’199 Patent, 10:6-16. 

However, WSOU’s proposed construction of “plain and ordinary meaning” would result in the 

generated quality metrics being associated with quality metrics indicated by the CQI itself. 

However, these are measurements of the Forward Link (FL) pilot energy at the wireless unit and 

cannot be used as the basis to dynamically adjust the CQI channel configurations. See id., 1:20-

38. For at least these reasons, Huawei’s proposed construction should be adopted.

B. “dynamically adjust a CQI channel configuration based on the comparison” 

(claims 1, 9) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“a closed-loop process which dynamically 

adjusts a CQI channel configuration based 

upon the comparison of the short term or long 

term quality metrics” 

Plain and ordinary meaning 

Huawei’s proposed construction for this disputed term provides clarity regarding the 

meaning of “dynamically adjust a CQI channel based on the comparison,” as that term is defined 

in the intrinsic record of the ’199 Patent. As a construction of “plain and ordinary meaning” fails 

to provide any such clarity, Huawei’s proposed construction should be adopted by the Court. 

 The specification of the ’199 Patent explains the concept of dynamic adjustment with 

reference to functionality performed by “decision making unit 34.” The specification explains 

that: 

The decision making unit 34 may analyze the received metrics against various 

settings or thresholds to determine whether to adjust various system configurations. 

... By comparing the metrics to the thresholds, the decision making unit 34 may 

determine when to adjust the system configurations to account for changes in the 

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CQI. ... Then, the adjusted configuration parameters are determined, the new 

settings may be send to the wireless unit 18 via a FL signal channel to update the 

R-CQICH configuration in the wireless unit 18. The same configuration may also 

be sent to the local CQI recover/decoding unit 30 to ensure the receiving process 

matches with the transmissions of wireless unit 18. As a result, the decision making 

unit 34 may provide a closed loop approach that dynamically updates system 

configurations in the base station 12 and wireless unit 18 to improve the overall 

system performance. 

’199 Patent, 6:50-7:5. The “metrics” analyzed by decision making unit 34 are the claimed short 

term and long term quality metrics. See id., 6:47-49 (“The metrics may include short-term quality 

metrics and long-term quality metrics for both full and differential modes.”). Notably, this is the 

only description in the ’199 Patent regarding the concept of dynamically adjusting a CQI channel 

configuration based on the comparison of long and short term metrics. 

Indeed, during prosecution, the patent applicants explained what they meant by 

“dynamically adjust a CQI channel configuration based on the comparison,” through specific 

citations to the specification. See Ex. 8, “Appl. Ser. No. 10/954,755, 8/11/09 Appeal Brief,” at 3-

4. The patent applicants specifically pointed to the submitted specification at page 14, lines 17-22 

and page 15, lines 5-7. Id. Importantly, those are the precise sections that Huawei relies upon 

now and that further explain that it is a “closed-loop process.” See Ex. 9, “Appl. Ser. No. 

10/954,755, Patent Application Transmittal,” at pp. 14-15. This lone disclosure fully supports 

Huawei’s proposed construction. 

 WSOU’s only two disputes with Huawei’s construction are the inclusion of a “closed loop 

process” and a “comparison of the short term or long term quality metrics.” See Opening Brief, at 

10-11. However the “closed loop” process is drawn precisely from the only passage the patent 

applicants relied on as explaining the dynamic adjustment process, as shown above. And the 

concept of “short term or long term quality metrics” is drawn from the claim language itself. 

Claims 1 and 9 specifically state the quality metrics comprise short term and long term quality 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 19 of 26
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metrics. And the antecedent “comparing” step in each claim is performed on “at least one of the 

quality metrics.” Therefore, by necessity, the comparison must be “of the short term or long term 

quality metrics.” Huawei’s clarification of how the “dynamic” process proceeds and what is 

compared are thus both drawn directly from the intrinsic record. 

Contrary to WSOU’s assertions, Huawei’s proposed construction is not an attempt to limit 

the patent to the lone disclosed exemplary embodiment (see Opening Brief, at 10), but rather to 

provide clarity to a vague term and define that term consistent with the patent’s written 

description.8 WSOU’s default to a “plain and ordinary meaning” construction provides no clarity 

as to the meaning of the otherwise ambiguous phrase “dynamically adjust[ing]” the channel, much 

less the needed clarity in context of the claim and intrinsic record. 

Lastly, WSOU’s contention that Huawei’s proposed construction is at odds with its 

statements in the pending IPR is misplaced. The PTAB has repeatedly explain that “claim terms 

need only be construed ‘to the extent necessary to resolve the controversy’” for the particular 

grounds in the IPR petition. See Wellman Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. 

Cir. 2011). No construction of this term is necessary in order to resolve the controversy present in 

Huawei’s IPR Petition and to establish that the alleged inventions of the ’199 Patent were well 

known in the prior art. However, there is a controversy here that warrants construction, and 

clarification of this claim term would prove helpful to the jury, who may not otherwise understand 

 

8

 See Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (holding that the 

specification “is the single best guide to the meaning of a disputed [claim] term.”); see also 

Retractable Technologies, Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, (Fed. Cir. 2011) (Fed. 

Cir. 2011) (“[i]n reviewing the intrinsic record to construe the claims, we strive to capture the 

scope of the actual invention, rather than strictly limit the scope of claims to disclosed 

embodiments or allow the claim language to become divorced from what the specification conveys 

is the invention.”). 

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what “dynamically adjusting” means in the context of the ’199 Patent. The same is not necessarily 

true for the PTAB, a specialized body trained in the subject matter and patent law. 

C. “generated by filtering frame based quality metrics over a plurality of 

frames” (claim 1) / “generated by filtering frame based quality metrics over a 

period of more than one frame” (claim 9) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

“created by processing frame based quality 

metrics over a plurality of frames in order to 

reject those long-term soft decision quality 

metrics that are unwanted” 

Plain and ordinary meaning 

The parties’ dispute centers around what is meant by “filtering frame based quality 

metrics” in the context of the claims.9 Importantly, the intrinsic record does not define what is 

meant by “filtering frame based quality metrics,” and WSOU’s ignores the fact that in prosecution 

history, the patent applicants disclaimed potential definitions of “filtering.” 

Specifically, during prosecution of the application that would eventually issue at the ’199 

Patent, the PTO rejected the application on multiple occasions in view of several difference prior 

art references, which the examiner found disclosed the concept of filtering.10 With respect to the 

Gholmeih and Servais references, the patent applicants distinguished these references by arguing 

that the ’199 Patent’s concept of “filtering” encompassed more than “generating metrics associated 

with the received data frames, averaging those metrics, and mapping the averaged metrics to 

provide a bit error rate estimate.” Ex. 8, “Appl. Ser. No. 10/954,755, 08/11/2009 Appeal Brief,” 

 

9

 WSOU’s Brief attempts to mischaracterize this dispute as one over “why the long-term 

quality metrics are generated.” Opening Brief, at 12. In reality, the central dispute is over the 

definition of “filtering,” and Huawei’s construction resolves that dispute. 

10 See Ex. 10, “Appl. Ser. No. 10/954,755, 05/21/2007 Office Action,” at 2-7 (rejection in 

view of Gholmieh); Ex. 11, “Appl. Ser. No. 10/954,755, 12/10/2008 Office Action,” at 3 (rejection 

in view of Gholmeih in view of Servais); Ex. 12, “Appl. Ser. No. 10/954,755, 11/13/2009 Office 

Action,” at 3 (rejection in view of Duan). 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 21 of 26
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at 7 (“The portion of Servais cited by the Examiner as teaching long-term soft decision quality 

metrics generated by filtering frame based quality metrics over a plurality of frames appears, at 

best, only to teach generating metrics associated with received data frames, averaging those 

metrics, and mapping the averaged metrics to provide a bit error rate estimate.”). WSOU’s “plain 

and ordinary meaning” construction fails to take into account this disclaimed scope regarding the 

meaning of “filtering.” 

 In view of these prosecution history statements, a construction of “plain and ordinary 

meaning” is inappropriate.11 The correct construction for this term must address the patent 

applicants’ disavowal with regard to what “filtering” means within the context of the ‘199 Patent. 

Huawei’s proposed construction does just that by referencing the common definition of the term 

– processing or accessing items in order to reject those that are unwanted. See Ex. 13, Webster’s 

New World College Dictionary (4th ed. 1999), at 530, definition of “filtering”. Huawei’s proposed 

construction should therefore be adopted by the Court.12 

D. “means for generating soft decision quality metrics from a decoding process 

for received channel quality indicator (CQI)” (claim 9) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: a base station that includes a CQI 

recovery/decoding unit, a CQI metric 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: CQI recovery/decoding unit; CQI 

metric generation unit; and equivalents 

thereof. 

 

11 See Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002) (holding 

that a “patentee may demonstrate intent to deviate from the ordinary and accustomed meaning of 

a claim term by including in the specification expressions of manifest exclusion or restriction, 

representing a clear disavowal of claim scope.”). 

12 WSOU’s only other complaint is regarding the different ending phrases in claims 1 and 9 

– “plurality of frames” versus “period of more than one frame.” Opening Brief, at 12. WSOU 

presents no meaningful difference between the two phrases, and the common understanding of 

plurality is “two or more” (i.e., more than one). 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 22 of 26
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generation unit using the algorithm(s) of 

13:58-15:38, and equivalents thereof.13

The parties agree that this term is subject to construction under 35 U.S.C. § 112, ¶ 6, and 

that the function is “generating soft decision quality metrics from a decoding process for a received 

channel quality indicator (CQI).” While the parties agree that there is “corresponding” structure 

disclosed in the specification that is clearly linked to and can accomplish the claimed function, the 

parties dispute which structure that is. The dispute between the parties is thus whether the 

“algorithms(s) of 13:58-15:38” and “base station,” as proposed by Huawei, are corresponding 

structure. 

 The parties appear to agree that the specification clearly links the CQI recovery/decoding 

unit and CQI metric generation unit as the components that are necessary to perform the claimed 

function. Huawei’s inclusion of the algorithms as defined at 13:58-15:38 results from the fact that 

the specification of the ’199 Patent explicitly identifies the algorithm within this portion of the 

specification as the algorithm that performs the recited function when discussing the 

implementation of the invention of the ‘199 Patent. For example, the patent provides that “[t]he 

CQI frame quality soft decision metrics are generated by the CQI metric generation unit 32, as 

discussed above,” and then proceeds to explain in detail the process by which the CQI frame 

quality soft decision quality metrics are generated, including the calculation and accumulation of 

erasure metrics. ‘199 Patent, 13:58-14:18-19. The specification continues by explaining the 

algorithms that are used during non-switching periods (13:58-14:64), and switching periods 

 

13 Huawei originally indicated that the “decision making unit 34” was corresponding structure 

for this claim limitation. However, after further consideration, Huawei has determined that the 

“decision making unit 34” is not corresponding structure. Huawei has conversely added the text 

from the ‘199 Patent, 13:58-15:38, which corresponds to the generation of soft decision metrics, 

and thus is proper corresponding structure. 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 23 of 26
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(14:65-15:18). It is this disclosure of algorithmic structure in combination with the disclosure of 

the CQI recovery/decoding unit and the CQI metric generation unit that properly inform a person 

of ordinary skill in the art what structures are needed to perform the claimed function. 

 To the extent WSOU argues that the algorithms in the identified portion of the specification 

are unnecessary, it is important to note that the two identified units – the CQI recovery/decoding 

unit and the CQI metric generation unit – do not have any generally understood meaning in the 

art, are not defined in the specification, and are not defined in any dictionary or extrinsic evidence 

provided by WSOU. Thus, at best, they are special purpose computer components that do not, by 

themselves, connote sufficient structure to a person of ordinary skill in the art. It is therefore 

necessary for a particular algorithm to be included in the corresponding structure.14 

 Likewise, with regards to WSOU’s contention about the inclusion of a base station, the 

language of claim 9 dictates that there must be a “system which comprises . . . means for 

determining whether to dynamically adjust a CQI channel configuration based on the comparison.” 

‘199 Patent, 16:15-27 (emphasis added). The only system disclosed in the ’199 Patent that 

comprises the CQI recovery/decoding unit and the CQI metric generation unit is a base station. 

Id. at FIG. 1; FIG. 8; 5:14-24; 6:25-33; and 10:6-16. The inclusion of a base station is therefore 

proper and necessary.15 Accordingly, Huawei’s proposed construction should be adopted by the 

Court. 

 

14 See Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1352 (Fed. Cir. 2015) (en banc) 

(holding that “[i]n cases such as this, involving a claim limitation that is subject to § 112, para. 6 

that must be implemented in a special purpose computer, this court has consistently required that 

the structure disclosed in the specification be more than simply a general purpose computer or 

microprocessor.”) 

15 See Mettler-Toledo, Inc. v. B-Tek Scales, LLC, 671 F.3d 1291, 1296 (Fed. Cir. 2012) (“If 

a patentee chooses to disclose a single embodiment, then any means-plus-function limitation will 

be limited to the single disclosed structure and equivalents thereof.”). 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 24 of 26
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Dated: March 5, 2021 Respectfully submitted, 

/s/ Jason W. Cook

Jason W. Cook 

Texas Bar No. 24028537 

Shaun W. Hassett 

Texas Bar No. 24074372 

McGuireWoods LLP 

2000 McKinney Avenue, Suite 1400 

Dallas, TX 75201 

Telephone: (214) 932-6400 

jcook@mcguirewoods.com 

shassett@mcguirewoods.com 

Tyler T. VanHoutan 

Texas Bar No. 24033290 

McGuireWoods LLP 

600 Travis St., Suite 7500 

Houston, TX 77002 

Telephone: (713) 571-9191 

tvanhoutan@mcguirewoods.com 

J. Mark Mann 

Texas Bar No. 12926150 

G. Blake Thompson 

Texas Bar No. 24042033 

MANN | TINDEL | THOMPSON 

300 West Main Street 

Henderson, Texas 75652 

Telephone: (903) 657-8540 

mark@themannfirm.com 

blake@themannfirm.com 

Counsel for Defendants Huawei Technologies 

Co., Ltd., Huawei Technologies USA, Inc., 

Huawei Device Co. Ltd. (f/k/a Huawei Device 

(Dongguan) Co.), Huawei Device (Shenzhen) Co., 

Ltd. (f/k/a Huawei Device Co. Ltd.) and Huawei 

Device USA

 

Case 6:20-cv-00541-ADA Document 46 Filed 03/05/21 Page 25 of 26
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CERTIFICATE OF SERVICE 

I hereby certify that all counsel of record who are deemed to have consented to electronic 

service are being served with a copy of this document via the Court’s CM/ECF system. 

 /s/ Jason W. Cook . 

 Jason W. Cook

 

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