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-533-ADA 

CIVIL ACTION No. 6:20-CV-535-ADA 

CIVIL ACTION No. 6:20-CV-540-ADA 

CIVIL ACTION No. 6:20-CV-543-ADA 

 

DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 1 of 47
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TABLE OF CONTENTS 

Page 

I. U.S. Patent No. 6,882,627 (“’627 Patent”) (Case No. 6:20-cv-00533) ............................. 1 

A. “performing a SRG (shared risk group) topology transformation of the 

network topology into a virtual topology that discourages the use of 

network resources” (claims 1, 29, 30) ................................................................... 1 

B. “second code means adapted to, for at least one shared risk group, 

determine if any of the at least one shared risk group includes any of the 

first sequence of network resources” (claim 29) .................................................... 4 

C. “third code means for performing a SRG (shared risk group) topology 

transformation of the network topology into a virtual topology which 

discourages the use of network resources” (claim 29) ........................................... 8 

II. U.S. Patent No. 6,999,727 (“the ’727 Patent”) (Case No. 6:20-cv-00543) ..................... 11 

A. “a number of corrected errors (BCE) in a non-SCS base reference time 

period” (claims 1, 4-7) ......................................................................................... 11 

B. “means for implementing a Performance Monitoring function based on 

data retrieved through a Forward Error Correction function” (claims 4, 5) ........ 14 

C. “means for classifying said blocks either as corrected or uncorrected 

through the Forward Error Correction function” (claims 4, 5) ............................ 17 

D. “means for calculating the Performance Monitoring function by 

implementing a correlation of the information regarding said correct and 

uncorrected blocks” (claims 4, 5) ........................................................................ 18 

E. “implementing a Performance Monitoring Function based on data 

retrieved through a Forward Error Correction Function” (claims 6, 7) ............... 20 

III. U.S. Patent No. 7,508,755 (“the ’755 Patent”) (Case No. 6:20-cv-00535) ..................... 22 

A. “originating network device” (claims 1, 3, 20) .................................................... 22 

B. “switch over message” (claims 1, 5, 8, 10, 13, 16, 18, 20, 23, 25) ...................... 25 

C. “means for re-routing . . . in a backwards direction” terms (claims 8, 23, 

25) ........................................................................................................................ 28

D. “means for re-routing traffic traveling along a bi-directional LSP in a 

forward direction to an alternate path in the forward direction” (claims 20, 

25) ........................................................................................................................ 30

E. “means for transmitting a switch over message along the alternate path in 

the forward direction to a merging network device responsible for rerouting traffic traveling along the bi-directional LSP in a backward 

direction to the alternate path in the backward direction” (claim 20) / 

“means for transmitting a switch over message, along the alternate path in 

the forward direction, for re-routing traffic traveling along the bidirectional LSP in a backwards direction” (claim 25) ........................................ 32 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 2 of 47
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F. “means for means for [sic] receiving traffic traveling along a bi-directional 

LSP in a forward direction to an alternate path in the forward direction” 

(claim 23) ............................................................................................................. 33 

IV. U.S. Patent No. 8,417,112 (“the ’112 Patent”) (Case No. 6:20-cv-00540) ..................... 34 

A. “determining whether said collected BER values worsen over time” 

(claims 1, 11) ....................................................................................................... 35 

i. The Patent Applicant Disavowed the Full Scope of the Claim Term 

During Prosecution by Specifying that the “Determining” as 

Claimed is an Affirmative Step by Comparing the Collected BER 

Values ...................................................................................................... 36 

ii. Huawei’s Proposed Construction Accords with the Specification 

and Claim Language and is Not Duplicative or Confusing ..................... 38 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 3 of 47
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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Advanced Ground Information Sys., Inc. v. Life260, Inc., 

830 F.3d 1341 (Fed. Cir. 2016)................................................................................................16 

Amazon.com, Inc. v. Barnesandnoble.com, Inc., 

239 F.3d 1343 (Fed. Cir. 2001)................................................................................................26 

B. Braun Med., Inc. v. Abbott Labs., 

124 F.3d 1419 (Fed. Cir. 1997)............................................................................................5, 29

Computer Docking Station Components, Inc. v. Dell, Inc., 

519 F.3d 1366 (Fed. Cir. 2008)................................................................................................27 

Ergo Licensing, LLC v. CareFusion 303, Inc., 

673 F.3d 1361 (Fed. Cir. 2012)..................................................................................................6 

Fenner Investments, Ltd. v. Cellco Partnership, 

778 F.3d 1320 (Fed. Cir. 2015)..................................................................................................2 

Gentry Gallery, Inc. v. Berkline Corp., 

134 F.3d 1473 (Fed. Cir. 1998)..................................................................................................2 

In re Katz Interactive Call Processing Patent Litig., 

639 F.3d 1303 (Fed. Cir. 2011)..................................................................................................6 

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

800 F.3d 1366 (Fed. Cir. 2015)................................................................................................22 

Medicines Company v. Mylan, Inc., 

853 F.3d 1296 (Fed. Cir. 2017)................................................................................................37 

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

671 F.3d 1291 (Fed. Cir. 2012)......................................................................................9, 16, 20 

Net MoneyIn, Inc. v. VeriSign, Inc., 

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

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

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

Omega Engineering, Inc. v. Raytek Corp., 

334 F.3d 1314 (Fed Cir. 2003).................................................................................................26 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 4 of 47
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On Demand Machine Corp. v. Ingram Industries, Inc., 

442 F.3d 1331 (Fed. Cir. 2006)............................................................................................3, 25

Pacing Techs., LLC v. Garmin Int'l, Inc., 

778 F.3d 1021 (Fed. Cir. 2015)................................................................................................23 

Phillips v. AWH Corp., 

415 F.3d 1303 (Fed. Cir. 2005) (en banc) ...............................................................................12 

Poly-America, L.P. v. API Industries, Inc., 

839 F.3d 1131 (Fed. Cir. 2016)................................................................................................38 

Rain Computer, Inc. v. Samsung Elecs. Co., Ltd., 

Case No. 20-1646, Dkt. No. 45 (Fed. Cir. Mar. 2, 2021) ....................................................6, 21 

Regents of Univ. of Minn. v. AGA Med. Corp., 

717 F.3d 929 (Fed. Cir. 2013)..................................................................................................24 

Ruckus Wireless, Inc. v. Innovative Wireless Solutions, 

824 F.3d 999 (Fed. Cir. 2016)....................................................................................................2 

Seachange Int’l, Inc. v. C-Cor, Inc., 

413, F.3d 1361, 1373 (Fed. Cir. 2005).....................................................................................27 

Springs Window Fasions LP v. Novo Inudstries, L.P., 

323 F.3d 989 ............................................................................................................................27 

Virginia Innovation Sciences, Inc. v. Amazon.com Inc., 

2019 WL 4259020 (E.D. Tex. Sep. 9, 2019) ...........................................................................21 

Williamson v. Citrix Online, LLC, 

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

Statutes 

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

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 5 of 47
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TABLE OF EXHIBITS 

Exhibit Description 

Ex. 1 Appl. Ser. No. 10/219,343, 06/10/2005 Amendment 

Ex. 2 Declaration of Tal Lavian Ph.D. regarding Claim Construction 

Ex. 3 Appl. Ser. No. 10/613,103, 06/27/2007 Amendment 

Ex. 4 Appl. Ser. No. 10/613,103, 11/18/2007 Amendment 

Ex. 5 Appl. Ser. No. 10/613,103, 03/25/2008 Amendment 

Ex. 6 Appl. Ser. No. 10/448,559, 11/19/2008 final Office Action 

Ex. 7 Appl. Ser. No. 10/448,559, 11/09/2009 Examiner’s Answer 

Ex. 8 Appl. Ser. No. 10/448,559, 09/09/2008 Office Action response 

Ex. 9 Appl. Ser. No. 10/448,559, 04/13/2009 Appeal Brief 

Ex. 10 Appl. Ser. No. 10/448,559, 09/02/2009 Reply Brief 

Ex. 11 Declaration of Vishal Sharma Ph.D. regarding Claim Construction 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 6 of 47
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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., -00540, Dkt. 43).1 

I. U.S. Patent No. 6,882,627 (“’627 Patent”) (Case No. 6:20-cv-00533) 

A. “performing a SRG (shared risk group) topology transformation of the 

network topology into a virtual topology that discourages the use of network 

resources” (claims 1, 29, 30) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“performing a transformation of links and/or 

nodes of a SRG (shared risk group) of the 

network into a virtual topology that 

discourages the use of network resources” 

Plain and ordinary meaning 

 The parties dispute whether the phrase “performing a SRG (shared risk group) topology 

transformation of the network topology into a virtual topology that discourages the use of network 

resources,” has only one ordinary meaning and thus is self-defining, and accordingly should be 

given its “plain and ordinary meaning,” as WSOU contends. It is not, and thus a construction of 

“plain and ordinary meaning is not appropriate.” See O2 Micro Int’l Ltd. v. Beyond Innovation 

Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008) (“[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.”). Further, the term “SRG (shared risk group) topology transformation” is not 

 

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-cv00533, -00535, -00540, and -00543. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 7 of 47
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one that would be commonly understood by the jury, and thus further supports the need for a 

construction. Fenner Investments, Ltd. v. Cellco Partnership, 778 F.3d 1320, 1323 (Fed. Cir. 

2015) (“When the disputed words describe technology, the terse usage of patent claims often 

requires ‘construction’ in order to define and establish the legal right.”) 

The dispute between the parties centers on whether the “topology transformation” is a 

transformation of “links and/or nodes” as specified in Huawei’s proposed construction. The 

definitions, figures, and text of the specification indicate that it is. While WSOU is correct that 

the specification states obliquely that “network resources ... might” include nodes and links (Op. 

Br. at 4), this inconclusive reference does not contradict the point that “link and/or nodes” are the 

only things that make up a network topology transformation. See, e.g., ’627 Patent, 6:49-7:52 

(describing “Link Transformation” and “Node Transformation” as “Topology Transformation”). 

At no point does the specification contemplate or describe an SRG topology transformation on 

other objects other than the links and nodes. Indeed, construing the instant claims to encompass 

that subject matter would likely render the claims invalid for lack of written description. See

Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1480 (Fed. Cir. 1998) (holding that a claim 

“may be no broader than the supporting disclosure”); see also Ruckus Wireless, Inc. v. Innovative 

Wireless Solutions, 824 F.3d 999, 1004 (Fed. Cir. 2016). 

This is not surprising given that, at its heart, a network topology is a representation of a 

network through nodes and links – indeed the entire point of a topology is geometric mapping to 

understand the network. See, e.g., ’627 Patent, 1:13-25 (“As is known in the art, a network includes 

a set of processing sites generally referred to as stations or nodes connected by one or more 

physical and/or logical connections generally referred to as links, which may be unidirectional 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 8 of 47
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or bi-directional in nature. ... The nodes may be coupled together in a variety of different network 

structures typically referred to as network topologies.”) (emphasis added). 

 WSOU’s argument that Huawei’s proposed construction excludes embodiments is belied 

by the statements and definitions set forth in the specification, which consistently show topologies 

comprising nodes and links. See id., Figs. 1, 3A-D. In addition, the specification makes clear that 

the groups of links and/or nodes are what “share a common risk of failure” and thus underlie the 

claimed “shared risk groups.” For example, the ’627 Patent states: 

Some links and/or nodes in a network may share common risk of failure. For 

example, there may be multiple links at which some point share a common resource 

such as a common single cable. Such links would simultaneously fail in the event 

of the failure of the common resource. Groups of network resources which share 

common risks are referred to herein as “shared risk groups” or SRGs. 

Id., 1:58-64 (emphasis added). These statements, taken in combination, demonstrate that the SRGs 

that are transformed consist of some combination of nodes and/or links, but not other undefined 

network resources. 

As such, contrary to WSOU’s contention, this is not a question of limiting the claims to a 

particular preferred embodiment, but rather construing the claims consistent with the scope of what 

is disclosed in the written description. See On Demand Machine Corp. v. Ingram Industries, Inc., 

442 F.3d 1331, 1340 (Fed. Cir. 2006) (“[T]he role of the specification is to describe and enable 

the invention. In turn, the claims cannot be of broader scope than the invention that is set forth in 

the specification.”). Huawei’s proposed construction properly accounts for the scope of the alleged 

invention set forth in the ’627 Patent and provides clarity as to the nature of the “SRG topology 

transformation,” and, as such, should be adopted by the Court. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 9 of 47
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B. “second code means adapted to, for at least one shared risk group, determine 

if any of the at least one shared risk group includes any of the first sequence 

of network resources” (claim 29) 

“means adapted to, for at least one shared risk group, determine if any of the 

at least one shared risk group includes any of the first sequence of network 

resources” (claim 30) 2 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: Indefinite for failure to disclose 

corresponding structure 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: processing platform readable 

medium, and equivalents thereof (claim 29) / 

a network management platform, and 

equivalents thereof (claim 30) 

Algorithm (if required): see, e.g., 2:13-54, 

3:54-4:15, 4:45-5:33, 6:23-37, 6:52-7:52, 

9:18-12, 12:46-50, Figs. 3A, 3B, 6B, and 

equivalents thereof 

The parties agree that these terms are means-plus-function terms governed by 35 U.S.C. § 

112, ¶ 6, and that the claimed function is to “determine if any of the at least one shared risk group 

includes any of the first sequence of network resources.”3 The parties disagree, however, whether 

there is corresponding structure disclosed in the specification of the ’627 Patent that is clearly 

linked to and accomplishes the agreed-to function. As a result, the Court must ascertain whether 

there is a corresponding structure disclosed in the ’627 Patent’s specification that corresponds to 

the claimed function. See Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1352 (Fed. Cir. 2015) 

(en banc). The “structure disclosed in the specification is ‘corresponding’ structure only if the 

 

2

 WSOU identifies three means-plus-function terms on page 3 of its Opening Brief and 

contends that those are terms with “Constructions Not Contested by Defendants.” While 

Defendants chose not to brief those terms given the limits imposed by the Court and OGP 3.2, 

Defendants contend that WSOU’s identification of structure is incorrect. 

3

 Contrary to WSOU’s contention, Huawei does not dispute the function for this term (see 

Opening Brief, at 5), Huawei only disputes that there is sufficient disclosure of corresponding 

structure. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 10 of 47
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specification or prosecution history clearly links or associates that structure to the function recited 

in the claim.” B. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). 

Because there is no structural component or corresponding algorithm disclosed in the 

specification that is clearly linked to and accomplishes the claimed function above, claims 29 and 

30 of the ’627 Patent are indefinite, and therefore invalid. See Ex. 2, Lavian Declaration, at ¶¶ 54-

73; see also Williamson, 792 F.3d at 1351-52. WSOU’s contention that the corresponding 

structure is the structure identified in the preamble of claims 29 and 30 creates redundancies in the 

claim language and is contrary to the case law. See Ex. 2, Lavian Declaration, at ¶ 58; see also, 

e.g., Net MoneyIn, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1366 (Fed. Cir. 2008) (holding that the 

term “bank computer” in the phrase “bank computer including” does not constitute sufficient 

structure because it “would require the first bank computer to include a first bank computer, which 

is both redundant and illogical. Because the claimed generating means is a subset of the bank 

computer, there must be a recitation of structure that is a component of the bank computer.”). 

Specifically, if the Court were to adopt the “processing platform readable medium” as the 

corresponding structure in claim 29, then the claim would require the “processing platform 

readable medium” itself to further include a “processing platform readable medium.” See, e.g., 

’627 Patent, claim 29 (“A processing platform readable-medium . . . the medium comprising . . . 

second code means adapted to determine if any of the at least one shared risk group includes any 

of the first sequence of network resources.”) (emphasis added). The same would hold true for the 

“network management platform” of claim 30. Id., claim 30 (“A network management platform 

comprising . . . means adapted to, for at least one shared risk group, determine if any of the at least 

one shared risk group includes any of the first sequence of network resources.”) (emphasis added). 

Construing means-plus-function terms in such a manner is improper and in contravention 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 11 of 47
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of long-established Federal Circuit precedent. See Net MoneyIn, Inc., 545 F.3d at 1366. Moreover, 

even if the “processing platform readable-medium” or “network management platform” were 

available to be considered as structural support, each of those terms equates to nothing more than 

a general purpose computer, which itself generally cannot serve as corresponding structure. See 

Williamson, 792 F.3d at 1352 (“[T]his court has consistently required that the structure disclosed 

in the specification be more than simply a general purpose computer or microprocessor.”); Rain 

Computer, Inc. v. Samsung Elecs. Co., Ltd., Case No. 20-1646, Dkt. No. 45 at 8-9 (Fed. Cir. Mar. 

2, 2021) (finding that “computer-readable media or storage devices amount to nothing more than 

a general-purpose computer” and that as a result disclosure of an algorithm is required).4

 This 

further supports that the specification must disclose a specific algorithm for performing the 

claimed function. See Net MoneyIN, Inc., 545 F.3d at 1367. 

 WSOU’s first response to this problem is that it does not need to disclose an algorithm 

because the functions described are “common” ones that do not require the disclosure of an 

algorithm. See Opening Brief, at 6 (citing In re Katz Interactive Call Processing Patent Litig., 639 

F.3d 1303, 1315-16 (Fed. Cir. 2011)). However, the Federal Circuit has emphasized that the Katz

exception is “narrow,” and it is “[i]t is only in the rare circumstances where any general-purpose 

computer without any special programming can perform the function that an algorithm need not 

be disclosed.” Ergo Licensing, LLC v. CareFusion 303, Inc., 673 F.3d 1361, 1364-65 (Fed. Cir. 

2012) (finding that “[t]he ‘control means’ at issue in this case cannot be performed by a general-

 

4

 For example, the only reference to a “processing platform readable medium” in the 

specification is anything “specific or nonspecific, to implement any of the methods described 

herein” (’627 Patent, 3:19-23), and the only reference to a “network management platform” is 

“adapted to implement any of the methods described herein,” and “would include any suitable 

combination of hardware and/or software.” Id., 3:24-27. These are the descriptions of a general 

purpose computer, not an independent structural element that one of the ordinary skill would 

understand to be clearly linked to the claimed function. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 12 of 47
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purpose computer without any special programming. The function of ‘controlling the adjusting 

means’ requires more than merely plugging in a general purpose computer”) (emphasis added). 

Importantly, a general purpose computer without special programming could not “determine if any 

of the at least one shared risk group includes any of the first sequence of network resources,” much 

less understand what a “shared risk group” even is. Software to analyze and consider network 

resources is the definition of “special purpose” software that requires algorithmic definition. 

WSOU’s second response to this lack of algorithmic support is to summarily argue that 

“the claim language itself provides all the algorithm that is required.” Opening Brief, at 6. WSOU 

provides no support for this contention, and the claim itself recites no such algorithm. Instead, the 

claims summarily and circularly state that “a shared risk group being a group of network resources 

within the network topology which have a shared risk.” See Ex. 2, Lavian Declaration, at ¶¶ 55-

61; see also ’627 Patent, claims 29 and 30. There is no further discussion as to how, 

algorithmically, one should “determine if any of the at least one shared risk group includes any of 

the first sequence of network resources.” 

WSOU’s final response is to point to extensive “exemplary” block cites and figures. 

Opening Brief, at 6. In doing so, WSOU is effectively asking the Court to guess as to what WSOU 

contends the corresponding structure(s) should be by citing to nearly the entire patent. 

Notwithstanding the fact that this guessing game is wholly improper, none of the specification 

sections or figures cited by WSOU actually identify corresponding structures that are clearly linked 

to the claimed functions. See Ex. 2, Lavian Declaration, at ¶¶ 62-72. WSOU highlights one 

solitary “example” for the Court at 6:23-37 (Opening Brief, at 6), and tellingly it does not disclose 

the claimed function at all, instead describing the labeled shared risk group 50, 52 and 54 based 

on the network topology 3A, and stating that it is “assumed” that there are those certain risk groups. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 13 of 47
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See id. at ¶ 67. WSOU’s only highlighted passage does not disclose the specific implementation 

of how to determine if any of the at least one shared risk group includes any of the first sequence 

of network resources in the first path through the network topology as claimed. WSOU thus 

provides no specific algorithmic support as required. 

Given that there is no clear link to any structural component or algorithm in the 

specification for performing the claimed function, claims 29 and 30 of the ’627 Patent are 

indefinite and therefore invalid. 

C. “third code means for performing a SRG (shared risk group) topology 

transformation of the network topology into a virtual topology which 

discourages the use of network resources” (claim 29) 

“means for performing a SRG (shared risk group) topology transformation of 

the network topology into a virtual topology which discourages the use of 

network resources” (claim 30)

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: A processing platform-readable 

medium comprising algorithms for link and 

node transformation such as those disclosed 

in Figures 3C, 3D, 4A, and 4B and the 

corresponding embodiments disclosed in 

6:49-7:52, and equivalents thereof (claim 29) 

A network management platform comprising 

algorithms for link and node transformation 

such as those disclosed in Figures 3C, 3D, 

4A, and 4B, and the corresponding 

embodiments disclosed in 6:49-7:52, and 

equivalents thereof (claim 30)5

 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: processing platform readable 

medium, and equivalents thereof (claim 29) / 

a network management platform, and 

equivalents thereof (claim 30) 

Algorithm (if required): see, e.g., 2:13-3:18, 

6:49-7:52, 7:63-8:28, 8:30-9:35, Figs. 2, 3A3D, 4A, 4B, 5A, 5B, 6A-6E, and equivalents 

thereof 

 

5

 Huawei has added the text from 6:49-7:52, which corresponds to these Figures and makes 

the corresponding structure clearer. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 14 of 47
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Similar to the terms in Section B above, Huawei and WSOU agree that these means-plusfunction terms are governed by 35 U.S.C. § 112, ¶ 6, and that the function is “performing a SRG 

(shared risk group) topology transformation of the network topology into a virtual topology which 

discourages the use of network resources.” While the parties agree that there is a “corresponding” 

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

function, the parties dispute which structures those properly are. 

For the reasons explained in Section B above, WSOU’s identification of structure from the 

claim preambles is legally improper and would create redundancies in claims 29 and 30. See, e.g., 

’627 Patent, claim 29 (“A processing platform-readable medium . . . comprising . . . third code 

means for performing a SRG (shared risk group) topology transformation of the network topology 

into a virtual topology which discourages the use of network resources.”) (emphasis added).6

 And 

WSOU’s backup, “if required” algorithm recites broad sections of the entire specification as 

opposed to identifying specific corresponding structure. Huawei’s proposed construction, to the 

contrary, includes the algorithms the specification of the ’627 Patent discloses as necessary to 

perform a SRG topology transformation of the network topology into a virtual topology – namely 

the algorithms disclosed in Figures 3C, 3D, 4A and 4B and the corresponding embodiments 

disclosed in 6:49-7:52.7 

 

6

 Notably, WSOU identifies the same alleged structure for both this term and the previous 

term, indicating this is not actually supporting structure for either particular function, but instead 

a general-purpose computer alleged to perform the method on the whole. 

7

 Importantly, the algorithms in Figures 3C, 3D, 4A, and 4B are the only algorithms 

disclosed that can perform a SRG topology transformation. In such a case, where the specification 

clearly links structures from only a single embodiment, then any means-plus-function claim will 

be limited to those structures. See Mettler-Toledo, Inc. v. B-Tek Scales, LLC, 671 F.3d 1291, 1296 

(Fed. Cir. 2012). 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 15 of 47
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The high-level step of performing a topology transformation is disclosed in step 2-4 of the 

SRG-Constrained Routing Algorithm. See id., 6:49-51 (“Create a Transformed Topology in which 

the Resources of Each Shared Risk Group Including a Resource in the Primary Path Are 

Transformed – Topology Transformation.”). Step 2-4 explains that the transformation of links is 

described in Figures 4A and 4B. See id., 6:63-64 (“A preferred method of performing link 

transformation will be described with reference to FIG. 4A”). The transformation of nodes is 

explained in Figure 4B. See id., 7:11-12 (“A preferred method of performing node transformation 

will be described with reference to FIG. 4B”). Figures 3C and 3D serve to provide an 

understanding of the end result of the transformation process and how the network links and nodes 

appear after the transformation has taken place. See id., 7:40-52. As such, Figures 3C, 3D, 4A, 

and 4B and the corresponding descriptions collectively provide a representation to one of ordinary 

skill in the art how to perform the claimed topology transformation and, as such, are the structural 

components that are necessary to perform the claimed function. 

In contrast, WSOU’s citation to the general purpose computers listed in the preamble of its 

claim is improper, and WSOU fails to clearly link the shotgun-blast citation to the entire patent as 

an “if required” algorithm to the claimed function. For example, the ’627 Patent at 2:31-3:18 

provides a summary of the invention describing the overall method of the invention, as opposed 

to a specific algorithm, 7:63-8:28 speaks to the separate process for determining “necessary and 

unnecessary common links” in an already transformed topology, and 8:30-9:35 describes a 

separate process of maintaining node disjointedness. To the contrary, Huawei’s identification of 

6:49-7:52 specifically describes “Creat[ing] a Transformed Topology ... Topology 

Transformation.” Huawei’s proposal is thus the proper “corresponding structures” pursuant to 35 

U.S.C. § 112, ¶ 6, and should be adopted by the Court. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 16 of 47
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II. U.S. Patent No. 6,999,727 (“the ’727 Patent”) (Case No. 6:20-cv-00543) 

A. “a number of corrected errors (BCE) in a non-SCS base reference time 

period” (claims 1, 4-7) 8

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“the number of background corrected errors 

that have been corrected within a base 

reference time period which is different than 

the base reference time period used to detect 

uncorrected blocks” 

Plain and ordinary meaning 

Huawei’s proposed construction of this term (1) holds WSOU to statements made in the 

prosecution history by the patent applicants clarifying that the portion of the claims that recite a 

“non-SCS base reference time period” refers to a time period different than the time period used 

to detect uncorrected blocks, and (2) clarifies the definition of the term “corrected errors,” which 

is subsumed within the term “BCE” (or “background corrected errors”) present in all of the 

asserted claims and used throughout the formulas and examples in the specification of the ’727 

Patent. 

As to the first part of Huawei’s proposed construction, the only time the letters “BCE” are 

used within the specification of the ’727 Patent is when the definition of “background corrected 

errors” is provided. See ’727 Patent, 3:8-11 (“BCE: background corrected errors: it is the number 

of CE [corrected errors] that are corrected in a ‘non SCS’ second ...”). WSOU appears to have no 

issue with the inclusion of this definition in Huawei’s proposed construction (other than the fact 

that WSOU does not believe this term needs to be construed at all). 

 

8

 Huawei previously proposed that the term “corrected errors” should also be construed. 

However, after further consideration, the clarification of the term “corrected errors” is best 

addressed in this claim term. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 17 of 47
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Next, Huawei’s construction that “corrected errors” are those that “have been corrected” is 

fully supported by the intrinsic record. The term “corrected errors” is expressly defined by the 

specification. See id., 2:48-51 (“corrected errors: number of errors (CE) that are corrected by the 

FEC mechanism in the time interval considered ...”). Huawei’s proposed construction is thus in 

line with this lexicographic definition from the specification with the one minor exception – 

Huawei’s proposed construction clarifies that it is the calculation of errors that “have been 

corrected.” See, e.g., id., 1:63-2:3 (stating that “the object of the present invention is to overcome 

the above said problems and to indicate a method for implementing a Performance Monitoring PM 

function according to data that are retrieved through FEC, in a telecom network, which is based 

upon the correlation of information relating to ‘corrected’ and ‘uncorrected’ information blocks 

deriving from the implementation of the FEC function.”) (emphasis added). This sentence 

explains that the Performance Monitoring PM function is implemented based on the information 

blocks derived from the FEC function, or put another way, from the output of the FEC function. 

See id., 2:4-9 (“Therefore, the basic idea is that it is possible to have a better indication on the 

status of path (link) through the implementation of the PM function based upon the correlation of 

the information regarding ‘corrected’ and ‘uncorrected’ information blocks deriving from the 

implementation of the FEC function.”) (emphasis added). Thus, the “corrected” errors are errors 

that have been corrected. 

Huawei’s slight modification of the definition set forth in the specification of the ’727 

Patent is supported by the plain meaning of the phrase itself, as the term “corrected” is used in the 

past rather than the present tense. Huawei’s proposed construction is thus consistent with the 

definition provided by the specification and with the plain claim language – i.e., that corrected 

blocks are blocks that “have been corrected.” See Phillips v. AWH Corp., 415 F.3d 1303, 1316 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 18 of 47
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(Fed. Cir. 2005) (en banc) (finding that when the patentee chooses to give a term a special 

definition, that lexicography governs). 

Finally, Huawei’s distinction regarding the SCS and non-SCS time periods comes from the 

definitions provided in the specification and from statements made during prosecution. 

Specifically, the specification explicitly defines an SCS base reference time period. See ’727 

Patent, 3:12-15 (“SCS: severely corrected second: it is either a defect second DS or a second 

wherein at least one uncorrected block UB has been detected (or both the conditions).”) In 

addition, the specification explains that when calculating the “first data item of PM,” the 

summation of the SCS time intervals is what allows the calculation of uncorrected blocks. See id., 

3:25-29 (“Therefore, from the BERIN formula, it is possible to see the correlation existing between 

the information regarding the corrected blocks (∑ BCE) and the uncorrected blocks (∑SCS)”). 

Further, during prosecution, the patent applicants distinguished the Cooper prior art 

reference (U.S. 6,772,388) by clarifying that the same size window (i.e., SCS time period) and 

non-same window size (i.e., non-SCS time period) were separate and distinct. See Ex. 1, “Appl. 

Ser. No. 10/219,343, 06/10/2005 Amendment,” at 6 (distinguishing Cooper because “the steps 

beginning at step 202 through the last step in Fig. 2 are all based on the same sample window size 

in Cooper. In Cooper, there is no correlation between a sample window size (time period) and a 

non-sample window size (different time period), for uncorrected and corrected blocks, 

respectively.”). 

In combination, these definitions and disclosures make clear to one of ordinary skill that 

the SCS second is used to calculate the total number of uncorrected blocks. Moreover, the SCS 

second is clearly different than the non-SCS second, as the prefix “non” in the English language 

means “not.” See, e.g., Merriam-Webster Online Dictionary, https://www.merriamCase 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 19 of 47
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webster.com/dictionary/non- (“non” defined as “not; other than; reverse of; absence of”). As such, 

the proper interpretation of this claim term is “the number of background corrected errors within 

a base reference time period, which is different than the base reference time period used to 

calculate uncorrected blocks.” Because Huawei’s proposed construction is in line with the 

lexicographic definitions from the specification and the statements in the prosecution history, it 

should be adopted by the Court.9

B. “means for implementing a Performance Monitoring function based on data 

retrieved through a Forward Error Correction function” (claims 4, 5) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. §112, ¶6 

Structure: Algorithm disclosed in Figure 1, 

and equivalents thereof 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: telecommunication network 

management system, and equivalents 

thereof; 

Algorithm (if required) see e.g., 1:63-2:21, 

2:36-4:54, Fig. 1 

The parties agree that this term is governed by 35 U.S.C. § 112, ¶ 6, and that the function 

is “implementing a Performance Monitoring function based on data retrieved through a Forward 

Error Correction function.” While the parties agree that there is a corresponding structure 

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

parties disagree about what that structure is. 

 For the reasons explained above with regard to the ’627 Patent (see’627 Patent, Section B,

supra), WSOU’s identification of the “telecommunication network management system” from the 

 

9

 Notably, Huawei has altered its proposed construction to clarify that the SCS base 

reference period is the period used to detect uncorrected blocks, as defined by the ’727 Patent (see

3:12-15). Accordingly, Huawei believes that WSOU’s dispute as to that portion of Huawei’s 

construction is now resolved 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 20 of 47
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preambles of claims 4 and 5 is legally improper and would create redundancies in those claims. 

See, e.g., ’727 Patent, claim 4 (“A management system of a telecommunication network,

comprising . . . means for implementing ...”) (emphasis added). Construing means-plus-function 

terms in such a manner is improper and in contravention of long-established Federal Circuit 

precedent. See Net MoneyIn, Inc., 545 F.3d at 1366. 

Moreover, the term “telecommunication network management system” is not defined 

within the specification,10 is not defined by any extrinsic evidence cited by WSOU, and WSOU 

does not claim that the term has a generally understood meaning in the art. The end result is thus 

that the term “telecommunication network management system” is akin to a generic general 

purpose computer, which itself cannot generally serve as corresponding structure. See Williamson, 

792 F.3d 1339, 1352 (“[T]his court has consistently required that the structure disclosed in the 

specification be more than simply a general purpose computer or microprocessor.”) 

Aside from arguing that the telecommunication network management system itself is 

structure (which it is not), WSOU points to extensive “exemplary” block cites and figures. See

Opening Brief, at 12. WSOU does so without any explanation as to which of these, if any, are 

clearly linked to the claimed function. Not surprisingly, none of the specification sections or 

figures cited by WSOU actually identifies corresponding structures that are clearly linked to the 

claimed function.11 Moreover, it is unclear whether WSOU asserts that the over two columns of 

 

10 For example, the only reference to a “telecommunication network management system” in 

the specification is the general statement that “from the above description, it is evidence how to 

obtain a telecommunication network management system, and the corresponding network, 

properly modified in order to include the operations provided by the method . . . .” ’727 Patent, 

4:56-59. However, this does not amount to the disclosure of an independent structural element 

that one of ordinary skill would understand. 

11 For instance, the ’727 Patent at 1:63-2:21 (cited by WSOU) generically copies the claim 

language and discusses the “basic idea” and objectives of the invention in functional language. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 21 of 47
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text from the’727 Patent cited by WSOU is, in its entirety, the corresponding structure, or if there 

is a particular section within the block citation that is meant to serve as the structure clearly linked 

to the claimed function. If the former, then it would appear to be WSOU’s view the same structure 

is clearly linked to all of the claimed functions in both claims 4 and 5. 

 As opposed to WSOU’s, Huawei’s proposed construction properly identifies the algorithm 

of Figure 1 as the algorithm that the specification discloses as necessary to implement the 

Performance Monitoring function. Specifically, the ’727 Patent provides that “the object of the 

present invention is to . . . indicate a method for implementing a Performance Monitoring PM 

function according to data that are retrieved through FEC, in a telecom network, which based upon 

the correlation of information relating to ‘corrected’ and ‘uncorrected’ information blocks deriving 

from the implementation of the FEC function.” ’727 Patent, 1:63-2:3. The only “method of 

implementation” disclosed in the specification is the method in Figure 1. Id., 2:29-31 (“FIG. 1 

illustrates a flow chart for the explanation of the calculation procedure of PM data which are the 

subject of the present invention.”). Since only a single embodiment is disclosed in the 

specification, the means-plus-function claims must be limited to those structures. Mettler-Toledo, 

Inc., 671 F.3d at 1296.12 As such, the Court should adopt Huawei’s proposed corresponding 

structure. 

 

12 The fact that the algorithm is provided in the form of a flow chart is irrelevant, as algorithms 

can be provided in any understandable terms that provide sufficient structure. See Advanced 

Ground Information Sys., Inc. v. Life260, Inc., 830 F.3d 1341, 1349 (Fed. Cir. 2016) (“In the case 

of computer-implemented functions, [] the specification [must] disclose an algorithm for 

performing the claimed function. The specification can express the algorithm in any 

understandable terms including as a mathematical formula, in prose . . . as a flow chart, or in any 

other manner that provides sufficient structure.” (quotation and citation omitted)). 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 22 of 47
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C. “means for classifying said blocks either as corrected or uncorrected through 

the Forward Error Correction function” (claims 4, 5) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: Indefinite for failure to disclose 

corresponding structure 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: network node performing Forward 

Error Correction function, and equivalents 

thereof 

The parties agree that this term is governed by 35 U.S.C. § 112, ¶ 6, and that function is 

“classifying said blocks as either corrected or uncorrected through the Forward Error Correction 

function.”13 The parties disagree, however, whether there is a corresponding structure disclosed 

in the specification of the ’727 Patent that is clearly linked to and accomplishes the agreed function. 

As will be shown below, there is not. 

WSOU’s contention that the corresponding structure is the “network node performing 

Forward Error Correction function,” is incorrect for a number of reasons. As an initial matter, the 

portion of the specification to which WSOU refers is merely a list of definitions of primitives that 

“can be obtained” from the FEC function. ’727 Patent, 2:45-47 (emphasis added). This portion 

of the specification says nothing about the function of “classifying said blocks.” See Ex. 11, 

Sharma Declaration, at ¶¶ 32-33 Moreover, there is no disclosure regarding classifying blocks as 

corrected or uncorrected through the Forward Error Correction function. See id. at ¶¶ 32-34, 

36-37 At best, WSOU’s citation pertains to primitives or metrics that are “obtained” by the FEC 

end function. See id. (“The following primitives can be obtained from a FEC end function, 

 

13 WSOU argues in its Opening Brief that Huawei’s claim of lack of corresponding structure 

“is erroneous at least because Defendants fail to identify any function.” Opening Brief, at 12. This 

argument is a red herring. The function at issue is clearly listed in the corresponding claims, and 

there is no dispute over the claimed function for this means-plus-function term. The dispute here, 

which WSOU clearly wishes to avoid, is whether there is corresponding structure disclosed in the 

specification. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 23 of 47
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performed in the network node: CEC, corrected errors ...”) (emphasis added); see also Ex. 11, 

Sharma Declaration, at ¶ 33. This disclosure relates to the other “obtaining” limitations of claims 

4 and 5. See id at ¶¶ 33-35; see also ’727 Patent, claim 4, 6:5-7 (“means for obtaining data through 

the Forward Error Correction function carried out on the blocks of received data.”) (emphasis 

added). Classifying data is a specific function within the limitations of claims 4 and 5, and nothing 

cited by WSOU relates to “classifying” the data obtained by the FEC function. See Ex. 11, Sharma 

Declaration, at ¶¶ 29-37. This is not surprising as nowhere other than the claims is the term 

“classifying,” or any synonym, even used. 

Given that there is no clear link to any structural component or algorithm in the 

specification for performing the claimed function, claims 4 and 5 of the ’727 Patent are indefinite 

and invalid. See id., at ¶ 37. 

D. “means for calculating the Performance Monitoring function by 

implementing a correlation of the information regarding said correct and 

uncorrected blocks” (claims 4, 5) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: Algorithmic structure: 

, and 

equivalents thereof 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: telecommunication network 

management system, and equivalents thereof 

Algorithm (if required): see e.g., 1:63-2:21, 

2:36-4:54, Fig. 1, and equivalents 

The parties agree that this term is governed by 35 U.S.C. § 112, ¶ 6, and that the function 

is “calculating the Performance Monitoring function by implementing a correlation of the 

information regarding said corrected and uncorrected blocks.”14 While the parties agree that there 

 

14 Huawei has revised its initial position regarding the function for this means-plus-function 

term and has adopted the claimed function proposed by WSOU. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 24 of 47
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is a “corresponding” structure disclosed in the specification that is clearly linked to and can 

accomplish the claimed function, the parties disagree about what that corresponding structure is. 

For the reasons explained in Section B above, and in the portions of Huawei’s Responsive Brief 

discussing this same issue with regard to the ’627 Patent (see’627 Patent, Section B, supra), 

WSOU’s inclusion of structure from the preambles of claims 4 and 5 as the “corresponding 

structure” is legally improper and would create unsuitable claim redundancies. See, e.g., ’727 

Patent, claim 4 (“A management system of a telecommunication network, comprising . . . means 

for calculating . . .”) (emphasis added). Construing means-plus-function terms in such a manner is 

improper. See Net MoneyIn, 545 F.3d at 1366. 

Aside from arguing that the “telecommunication network management system” itself is 

structure (which it is not), WSOU points to extensive “exemplary” block cites and figures. See

Opening Brief, at 13. WSOU again does so without any explanation as to which, if any, are 

allegedly clearly linked to the claimed function. Not surprisingly, none of the specification 

sections or figures cited by WSOU actually identify corresponding structures that are clearly linked 

to the claimed functions.15 

Further, WSOU’s citation to Figure 1 is misplaced, as Figure 1 only discloses that SCS and 

BCE are counted, but fails to disclose how to calculate the Performance Monitoring function by 

implementing a correlation of the information regarding said corrected and uncorrected blocks. 

What’s more, WSOU has identified the exact same structure for this function as it did for the 

means-plus-function term above Section B. Tellingly, WSOU provides no explanation for how 

the ’727 Patent allegedly employs the same structure to perform two different functions. 

 

15 For instance, as noted above in Section B (incorporated herein by reference), the ’727 

Patent at 1:63-2:21 (cited by WSOU) generically copies the claim language and discusses the 

“basic idea” and objectives of the invention in functional language. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 25 of 47
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By comparison, Huawei’s proposed corresponding structure includes the only algorithm in 

the specification that is capable of calculating the Performance Monitoring function by 

implementing a correlation of the information regarding said corrected and uncorrected blocks – 

namely, the BERIN formula listed at column 3, line 21 of the ’727 Patent (“BERIN=∑BCE/(NSEC-

∑SCS”). See also id., 3:15-29 (stating that it is the BERIN formula that allows for the calculation 

of Performance Monitoring data and the correlation between corrected and uncorrected blocks).16 

As such, the Court should adopt Huawei’s proposed corresponding structure. 

E. “implementing a Performance Monitoring Function based on data retrieved 

through a Forward Error Correction Function” (claims 6, 7) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. §112, ¶6 

Function: implementing a Performance 

Monitoring function based on data retrieved 

through a Forward Error Correction function 

Structure: Algorithm disclosed in Figure 1, 

and equivalents thereof 

Plain and ordinary meaning 

“classifying said blocks either as corrected or uncorrected through the 

Forward Error Correction function” (claims 6 and 7) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6 

Function: classifying said blocks either as 

corrected or uncorrected through the Forward 

Error Correction function 

Structure: Indefinite for failure to disclose 

corresponding structure 

Plain and ordinary meaning 

 

16 Since only a single embodiment is disclosed, the means-plus-function claims must be 

limited to those structures. See Mettler-Toledo, 671 F.3d at 1296. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 26 of 47
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The parties’ dispute for these terms centers on whether or not these claims limitations 

should be construed as means-plus-function claims pursuant to 35 U.S.C. § 112, ¶ 6, and if so, 

whether and what the corresponding structure is. Admittedly, these terms do not include the term 

“means,” are thus are subject to a rebuttal presumption that they are not means-plus-function 

limitations. See Williamson, 792 F.3d 1348. Importantly, Williamson abrogated prior law that the 

absence of the word “means” gives rise to a “strong” presumption against means-plus-function 

treatment. See id. The presumption can now be overcome and § 112, ¶ 6 will apply if “the claim 

term fails to ‘recite sufficiently definite structure’ or else recites ‘function without reciting 

sufficient structure for performing that function.’” Id. (quoting Watts v. XL Sys., Inc., 232 F.3d 

877, 880 (Fed. Cir. 2000)). 

WSOU relies upon cases decided prior to the Williamson decision and prior to the 

abrogation of the “strong” presumption against means-plus-function treatment. See Opening Brief, 

at 15-16.17 Moreover, and contrary to WSOU’s contentions, computer-readable medium storages 

devices amount to nothing more than a general-purpose computer and do not, by themselves, 

connote sufficient structure. See Rain Computer, Inc., Case No. 20-1646, Dkt. No. 45 at 8-9 

(finding that “computer-readable media or storage devices amount to nothing more than a generalpurpose computer” and that as a result disclosure of an algorithm is required). 

The claims at issue here contain no memory, no processor, include “program code” only 

in the preamble, and provide no substantial detail on the programmable instructions beyond the 

 

17 Notably, the case which WSOU cites regarding “program code” connoting specific 

structure included “memory” with “program code that includes instructions executed by [a] 

processor,” and “program code executable by the processor,” all in the claim and not the preamble

and further included “substantial detail regarding instructions included in the program code.” 

Virginia Innovation Sciences, Inc. v. Amazon.com Inc., 2019 WL 4259020, *30-*32 (E.D. Tex. 

Sep. 9, 2019). 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 27 of 47
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pure functional language recited above. As has been noted since Williamson, regardless of the 

claim type, style, or structure, the proper analysis is whether one of ordinary skill in the art would 

understand a claim written with functional language, in the context of the specification, to denote 

sufficiently definite structure or acts for performing the function. See Media Rights Techs., Inc. v. 

Capital One Fin. Corp., 800 F.3d 1366, 1372 (Fed. Cir. 2015). 

Here, the claim terms at issue are too generalized and recite purely functional language. 

Notably, other than the format of the preamble, claims 6 and 7 are nearly identical to claims 4 and 

5 of the ’727 Patent – the only difference is the inclusion of the word “means” in each of the 

corresponding limitations of claims 4 and 5. Compare ’727 Patent, 5:66-6:46 with 6:47-8:11. In 

each of claims 4 and 5, there is no additional information, detail, or structure identified in the claim 

limitations themselves. Thus, removing the word “means” from the undisputed means-plusfunction limitations from claims 4 and 5 and including only the verbatim functional language in 

claims 6 and 7 should not change the character of the relevant claim limitations. This failure to 

recite sufficient structure for performing the claimed functions lands these claims limitations 

squarely within the bounds of § 112, ¶ 6. See Williamson, 792 F.3d at 1351. 

Should the Court find that these claim limitations are subject to 35 U.S.C. §112, ¶ 6, then 

Huawei’s arguments regarding the corresponding structure for these terms (or lack thereof) is the 

same as those above in Sections C and D, above. See Ex. 11, Sharma Declaration, at ¶ 38. 

III. U.S. Patent No. 7,508,755 (“the ’755 Patent”) (Case No. 6:20-cv-00535) 

A. “originating network device” (claims 1, 3, 20) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“a network device of a primary LSP which is 

not a source network device of the same 

primary LSP” 

Plain and ordinary meaning 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 28 of 47
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 Huawei’s proposed construction of “originating network device” is directly supported by 

the intrinsic record and the ‘755 Patent’s distinction regarding the function of different components 

within a network. In contrast, WSOU’s contention that this term should be afforded its “plain and 

ordinary meaning” ignores the clear teachings of the specification regarding the scope of the 

alleged invention.18 Huawei’s proposed construction should thus be adopted. 

According to the specification, the alleged invention of the ’755 Patent is directed to the 

re-routing of traffic within MPLS networks. See, e.g., ’755 Patent, 2:7-10 (“FIG. 1 is a simplified 

block diagram showing an MPLS network which includes elements capable of re-routing bidirectional LSP traffic upon detection of a failure in accordance with the present invention.”) 

(emphasis added); see also Pacing Techs., LLC v. Garmin Int'l, Inc., 778 F.3d 1021, 1024 (Fed. 

Cir. 2015) (where the specification describes the “present invention” in a specific manner, such 

statements constitute “clear and unmistakable statements by the patentee that limit the claims.”). 

This fact is bolstered by the specification’s consistent and repeated reference to LSPs, which are 

pathways only present in MPLS networks. In all disclosed embodiments, the specification 

distinguishes the different network devices within a system, including differentiating the 

originating network device, merging network device, and source network device. See ’755 Patent, 

1:12-14. (“[a] conventional LSP begins at a source network device, passes through intermediate 

network devices, and ends at a destination network device.”); 2:39-42 (“The process depicted in 

FIG. 2 is used to first identify an originating network device which is not a source node and, 

second, to set up an alternate path between the originating network device and a merging network 

device”); 2:61-3:4 (teaching that the control processing section must make a determination if the 

 

18 WSOU’s argument that the “claim language itself provides a definition of this term” 

(Opening Brief, at 18), fails. The claim language describes what the “originating network devices” 

does, but not what it is (i.e., what network device it is within the network). 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 29 of 47
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network device is an originating network device or a source network device because if the device 

is a source network device, then the alternate pathway cannot be created). 

In Figure 1, which the patent defines as “the present invention,” for example, the 

“originating network device” is the network device 120 situated immediately before the point of 

failure, which is distinct from the source network device 110 of the primary bi-directional LSP 

100. Id., Fig. 1; 1:61-64 and 2:7-10 (“FIG. 1 is a simplified block diagram showing an MPLS 

network 105 which includes elements capable of re-routing bi-directional traffic upon detection of 

a failure in accordance with the present invention.”) However, the signal has to pass through other 

system devices before it reaches the originating network device. See id., Fig. 1 (indicating packet 

and information flow sourced prior to device 110 and prior to the information flow arriving at 

originating device 120). 

As yet another example, the specification explains that the source network device and 

originating network device in Figure 2 are distinct from one other. See id., 2:39-42 (“The process 

depicted in FIG. 2 is used to first identify an originating network device which is not a source node 

and, second, to set up an alternate path between the originating network device and a merging 

network device.”). The ’755 Patent goes further, however, distinguishing a “conventional LSP,” 

which “begins at a source network device,” and explaining how current MPLS Fast Re-routing 

operations are “deficient.” Id., 1:7-44. In explaining the purpose and benefits of the invention, 

the Patent distinguishes these “conventional LSPs” from the Patent’s “bi-directional LSP[s],” 

which allow for the rerouting of “traffic traveling in both directions from a bi-directional LSP to 

an alternate path using the same network elements.” Id., 1:47-49. These statements necessarily 

limit the scope of the ‘755 Patent to MPLS networks. See e.g., Regents of Univ. of Minn. v. AGA 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 30 of 47
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Med. Corp., 717 F.3d 929, 936 (Fed. Cir. 2013) (finding patent claims limited due to 

representations of what the claimed invention is).19 

WSOU argues that Huawei’s proposed construction would limit the disputed term to only 

certain disclosed embodiments based on a statement in the specification that only “exemplary 

embodiments” are disclosed therein. Opening Brief, at 19. However, other than this generic 

language, WSOU can point to no embodiment from the specification that would be omitted by 

Huawei’s proposed construction, as all of the descriptions in the intrinsic record draw a distinction 

between the source and originating network devices. In such situations, it is entirely proper for a 

court to limit the scope of the invention consistent with the invention disclosed in the specification. 

See, e.g., On Demand Mach. Corp. v. Ingram Indus., 442 F.3d 1331, 1340 (Fed. Cir. 2006) 

(“[C]laims cannot be of broader scope than the invention that is set forth in the specification.”). 

B. “switch over message” (claims 1, 5, 8, 10, 13, 16, 18, 20, 23, 25) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“a message which instructs a device to 

perform a switch over to the alternate path 

and which is not a message that indicates a 

fault has occurred in the network” 

Plain and ordinary meaning 

 Huawei’s proposed construction reflects this term’s consistent use throughout the intrinsic 

record. By comparison, WSOU’s proposed construction of “plain and ordinary meaning” ignores 

the unequivocal disclaimers made by the patent applicant during prosecution, and is a classic 

example of arguing one thing to get a patent allowed in the face of a PTO rejection, and 

subsequently arguing the opposite when asserting the claims against an alleged infringer. WSOU 

 

19 Indeed, WSOU’s reference to a quote from the specification describing “existing MPLS 

Fast Re-routing techniques” (Opening Brief, at 19) (emphasis added), supports Huawei’s 

construction by demonstrating that the techniques described were designed to apply to those MPLS 

networks that existed at the time. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 31 of 47
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is well aware that this kind of conduct is prohibited. See Opening Brief, at 4; see also Amazon.com, 

Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001) (“[a] patent may not, like 

a ‘nose of wax,’ be twisted one way to avoid [invalidity] and another to find infringement.” 

(citation omitted)). 

The specification of the ’755 Patent repeatedly instructs that the claimed “switch over 

message” is “a message which instructs a device to perform a switch over to the alternate path.” 

E.g., ’755 Patent, 1:54-57 (“to transmit a switch over message along the alternate path in the 

forward direction to a network device responsive for re-routing traffic . . .”); 2:11-25 (explaining 

that upon the detection of a network failure, a switch over message is used to create alternate 

pathways); 2:52-60 (disclosing that the switch over message is used by network devices to switch 

traffic to the alternate path, and that a switch over is only performed after receiving the switch over 

message). 

In addition, the prosecution history reveals that the claimed switch over message cannot 

be a fault detection message. Prosecution disclaimer attaches to a term “where a patentee 

unequivocally disavowed a certain meaning to obtain his patent.” Omega Engineering, Inc. v. 

Raytek Corp., 334 F.3d 1314, 1324 (Fed Cir. 2003). The doctrine narrows the meaning of the 

claim congruent with the scope of the surrender. Id. 

In this case, in order to overcome numerous rejections from the PTO, the applicant 

consistently represented (from the applicant’s response to the first office action, through the 

response to the last office action, and finally through the appeal briefs) that the claimed “switch 

over message” is distinct and separate from a message indicating that a fault has occurred in the 

network. See e.g., Ex. 3, “Appl. Ser. No. 10/613,103, 06/27/2007 Amendment,” at 10 

(distinguishing the Carpini prior art reference and explaining that “[t]he excerpts cited in the Office 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 32 of 47
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Action (paragraph 47, lines 15-19) appear to relate to the detection of a ‘fault indication’ message, 

not a switch-over message. The former relates to fault detection; the latter relates to the re-routing 

of traffic along an alternative, bi-directional LSP in a backwards direction.”); Ex. 4, “Appl. Ser. 

No. 10/613,103, 11/18/2007 Amendment,” at 9-10 (“Carpini does not disclose a switch-over 

message that is used to re-route traffic. The excerpts cited in the Office Action . . . appear to relate 

to the detection of a ‘fault detection’ message, not a switch-over message. ... In sum, the switchover message does not identify a fault; rather it is used by a merging network device to re-route 

traffic. It is, therefore, unreasonable to interpret a fault indication message as a switch-over 

message.”); Ex. 5, “Appl. Ser. No. 10/613,103, 03/25/2008 Amendment,” at 10-11 (distinguishing 

Carpini because it is “capable of detecting diverting data and routing it back to a primary path 

without using a switch-over message” and because “the Examiner’s interpretation of the terms 

‘divert’ or ‘re-routing’ as used in Carpini as having the same or similar meaning as the claimed 

switch-over message is unreasonable.”). 

In view of these repeated and unequivocal statements, the applicant disavowed any claim 

construction (such as the present “plain and ordinary meaning”) where the “switch over message” 

could include messages that indicate that a fault has occurred in the network. See Computer 

Docking Station Components, Inc. v. Dell, Inc., 519 F.3d 1366, 1379 (Fed. Cir. 2008) (finding 

disavowal of claim scope where “the sum of patentee’s statements during prosecution would lead 

a competitor to believe that the patentee had disavowed coverage of laptops”); Seachange Int’l, 

Inc. v. C-Cor, Inc., 413, F.3d 1361, 1373 (Fed. Cir. 2005) (finding disclaimer where the applicant 

argued during prosecution that “illustrative” claim did not disclose features of prior art); Springs 

Window Fasions LP v. Novo Inudstries, L.P., 323 F.3d 989, 996 (finding disclaimer where the 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 33 of 47
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applicant made consistent and repeated arguments distinguishing the prior art from the claimed 

invention). 

Only Huawei’s construction of “switch over message” is consistent with the intrinsic 

evidence, aligning with both the definition provided in the specification and the express disclaimer 

from the patent applicant during prosecution. Accordingly, Huawei’s proposed construction 

should be adopted by the Court. 

C. “means for re-routing . . . in a backwards direction” terms (claims 8, 23, 25)20

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. §112, ¶6 

Structure: Indefinite for failure to disclose 

sufficient corresponding structure 

Subject to 35 U.S.C. §112, ¶ 6 

Structure: merging network device, and 

equivalents thereof 

 

Algorithm (if required): see e.g., 2:7-32, 2:43-

60, 3:13-36, Figs. 1, 2, 3 

The parties agree that these means-plus-function terms are governed by 35 U.S.C. § 112, ¶ 

6, and agree that the claimed functions are as listed by WSOU in its Opening Brief (at 20). The 

parties dispute, however, whether there is a corresponding structure disclosed in the specification 

that is clearly linked to and accomplishes the claimed functions. As a result, the Court must 

ascertain whether there is a “corresponding structure” identified in the ’755 Patent’s specification 

that corresponds to the claimed functions. See Williamson, 792 F.3d at 1352. The “structure 

disclosed in the specification is ‘corresponding’ structure only if the specification or prosecution 

 

20 WSOU identifies two means-plus-function terms in its Opening Brief and contends that 

those are terms with “Constructions Not Contested by Defendants.” Opening Brief, at 18. While 

Defendants chose not to brief those terms given the limits imposed by the Court and OGP 3.2, 

Defendants contend that WSOU’s identification of structure is incorrect for reasons similar to 

those identified in this Section. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 34 of 47
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history clearly links or associates that structure to the function recited in the claim.” B. Braun 

Med., Inc., 124 F.3d at 1424. 

Because there is no structural component or corresponding algorithm disclosed in the 

specification that is clearly linked to and accomplishes the claimed functions above, claims 8, 23, 

and 25 of the ’755 Patent are indefinite, and therefore invalid. See Ex. 2, Lavian Declaration, at ¶ 

75; see also Williamson, 792 F.3d at 1351-52. WSOU’s contention that the merging network 

device constitutes sufficient structure is incorrect for the same reasons described above with regard 

to the ’627 Patent (see’627 Patent, Section B, supra) – namely, because the merging network 

device is not linked in the specification as the “means” for re-routing traffic, but rather is identified 

as “comprising” those means in the claims. See, e.g., ’755 Patent, claims 8 and 23 (claiming a 

“merging network device which comprises means for . . . re-routing traffic . . . in the backwards 

direction.”) (emphasis added). This type of proposed construction is improper. See Net MoneyIn, 

Inc., 545 F.3d at 1366. In addition, it is notable that the term “merging network device” is not 

defined within the specification, and is not defined by any extrinsic evidence provided by WSOU. 

The end result is then that the term “merging network device” is akin to a generic general purpose 

computer, which itself cannot generally serve as corresponding structure. See Ex. 2, Lavian 

Declaration, at ¶¶ 76-78; see also Williamson, 792 F.3d at 1352. 

 WSOU fails to cite to any specific structural components or algorithms of the merging 

network device that are clearly linked to the claimed functions above. And none of the block cites 

WSOU includes in its Opening Brief clearly link structure to the recited function. See Opening 

Brief, at 21. See Ex. 2, Lavian Declaration, at ¶¶ 74-87. For example, the’755 Patent at 2:7-32 

(cited by WSOU) merely describes the high-level function of re-routing bi-directional LSP traffic 

upon detection of a failure without disclosing any specific structures or algorithms that perform 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 35 of 47
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the identified functions of claims 8, 23, and 25. See Ex. 2, Lavian Declaration, at ¶ 81 . In addition, 

the passage at 2:43-60 discusses functionality of the originating network device rather than 

WSOU’s purported structure of the merging network device. WSOU’s other citations are equally 

problematic. See Ex. 2, Lavian Declaration, at ¶ 82. In sum, none of the citations to the ’755 

Patent identified by WSOU – including 3:13-36 or Figs. 1, 2, or 3 – recite sufficient structure 

clearly linked to the claimed functions. See Ex. 2, Lavian Declaration, at ¶¶ 80-87. 

Given that there is no clear link to any structural component or algorithm in the 

specification for performing the recited functions above, claims 8, 23, and 25 are indefinite. 

D. “means for re-routing traffic traveling along a bi-directional LSP in a 

forward direction to an alternate path in the forward direction” (claims 20, 

25) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. §112, ¶6 

Structure: Indefinite for failure to disclose 

corresponding structure 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: originating network device and 

equivalents thereof 

Algorithm (if required): see, e.g., 1:51-56, 

2:7-32, 2:43-60, Figs. 1, 2, 3 

The parties again agree that this a means-plus-function term governed by 35 U.S.C. § 112, 

¶ 6, and agree that the corresponding function is “re-routing traffic traveling along a bi-directional 

LSP in a forward direction to an alternate path in the forward direction.” The parties again dispute, 

however, whether there is corresponding structure disclosed in the specification of the ’755 Patent 

that is clearly linked to and accomplishes the agreed to function. 

WSOU’s contention that the “originating network device” from the preambles of the 

respective claims constitutes corresponding structure is improper for the reasons explained in 

Sections B and C, above. See also ’755 Patent, claim 20 (claiming an “originating network device 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 36 of 47
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comprising . . . means for re-routing traffic . . . in a forward direction.”) (emphasis added); Net 

MoneyIn, Inc., 545 F.3d at 1366 (Fed. Cir. 2008). As before, WSOU fails to cite to any specific 

structural components or algorithms that comprise the “originating network device.” See Ex. 2, 

Lavian Declaration, at ¶¶ 88-101. In addition, it is notable that the term “originating network 

device” is not defined within the specification, nor is it defined by any extrinsic evidence provided 

by WSOU. Moreover, WSOU does not claim that the term has a generally understood meaning 

in the art. The end result is that, at best, the term “originating network device” is akin to a generic 

general purpose computer, which itself cannot generally serve as corresponding structure. See Ex. 

2, Lavian Declaration, at ¶¶ 88-93; see also Williamson, 792 F.3d at 1352. 

As it did for the disputed terms above, rather than identify any specific structure of the 

“originating network device” (as there is none), WSOU simply includes multiple block cites from 

the specification that WSOU contends are relevant “to the extent an algorithm is required.” 

Opening Brief, at 22. However, once again, none of the sections cited by WSOU identify 

corresponding structures or algorithms clearly linked to the claimed function. See Ex. 2, Lavian 

Declaration, at ¶¶ 88-101 . For example, the ’755 Patent at 1:51-56 and 2:7-32 (cited by WSOU) 

merely describes the high-level functions of the originating network device and of re-routing bidirectional LSP traffic upon detection of a failure without disclosing any specific structures or 

algorithms that perform the identified functions of claims 20 and 25. See Ex. 2, Lavian 

Declaration, at ¶¶ 95-96. WSOU’s other citations are equally problematic, and fail to recite 

sufficient structure clearly linked to the claimed function. See Ex. 2, Lavian Declaration, at ¶¶ 94-

101. As such, claims 20 and 25 are indefinite and invalid. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 37 of 47
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E. “means for transmitting a switch over message along the alternate path in 

the forward direction to a merging network device responsible for re-routing 

traffic traveling along the bi-directional LSP in a backward direction to the 

alternate path in the backward direction” (claim 20) / 

“means for transmitting a switch over message, along the alternate path in the 

forward direction, for re-routing traffic traveling along the bi-directional LSP 

in a backwards direction” (claim 25) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: Indefinite for failure to disclose 

corresponding structure 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: originating network device, and 

equivalents thereof 

Algorithm (if required): see, e.g., 1:51-56, 

2:7-32, 2:43-60, 3:9-36, Figs. 1, 2, 3 

The parties agree that these means-plus-function terms are governed by 35 U.S.C. § 112, ¶ 

6, and that the claimed are as identified in WSOU’s Opening Brief (at 23). The parties dipute, 

however, whether there is corresponding structure disclosed in the specification of the ’755 Patent 

that is clearly linked to and accomplishes the claimed functions. 

As explained above with regard to the ’627 Patent (see’627 Patent, Section B, supra), 

WSOU’s contention that the “originating network device” from the preambles of the claims 

themselves constitutes sufficient structure is improper and contrary to long-established Federal 

Circuit precedent. See, e.g., 755 Patent, claim 20 (claiming an “originating network device

comprising . . . means for transmitting a switch over message . . . .”) (emphasis added); see also 

Net MoneyIn, Inc., 545 F.3d at 1366 (Fed. Cir. 2008). In addition, it is notable that the term 

“originating network device” is not defined within the specification, not defined by any extrinsic 

evidence provided by WSOU, and WSOU does not claim that the term has a generally understood 

meaning in the art. The end result is again that the term “originating network device” is akin to a 

generic general purpose computer, which itself generally cannot serve as corresponding structure. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 38 of 47
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See Ex. 2, Lavian Declaration, at ¶¶ 102-107; see also Williamson, 792 F.3d at 1352. 

WSOU further fails to cite to any specific structural components or algorithms in the 

“originating network device” that are clearly linked to the claimed functions. See Ex. 2, Lavian 

Declaration, at ¶¶ 102-117. For example, the ’755 Patent,1:51-56 and 2:7-32 (cited by WSOU,

see Opening Brief, at 23-24) describes the high-level functions or the originating network device 

and of re-routing bi-directional LSP traffic upon detection of a failure without disclosing any 

specific structures or algorithms that perform the identified functions of claims 20 and 25. See Ex. 

2, Lavian Declaration, at ¶¶ 110-111. WSOU’s other citations are equally unavailing and fail to 

recite structure clearly linked to the claimed function. See Ex. 2, Lavian Declaration, at ¶¶ 112-

117 . Given that there is no clear link to any structural component or algorithm in the specification 

for performing the recited functions above, claims 20 and 25 are indefinite and therefore invalid. 

F. “means for means for [sic] receiving traffic traveling along a bi-directional 

LSP in a forward direction to an alternate path in the forward direction” 

(claim 23) 

Huawei’s Proposed Construction WSOU’s Proposed Construction

Subject to 35 U.S.C. §112, ¶6 

Structure: Indefinite for failure to disclose 

corresponding structure 

Subject to 35 U.S.C. § 112, ¶ 6 

Structure: merging network device and 

equivalents thereof 

Algorithm (if required): see, e.g., 2:7-32, 

2:43-60, 3:13-36, Figs. 1, 2, 3 

The parties again agree that this means-plus-function term is governed by 35 U.S.C. § 112, 

¶ 6, and that the function is “re-routing traffic traveling along a bi-directional LSP in a forward 

direction to an alternate path in the forward direction.” The parties again dispute, however, 

whether there is corresponding structure disclosed in the specification of the ’755 Patent that is 

clearly linked to and accomplishes the agreed to function. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 39 of 47
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As explained with regard to the preceding terms, WSOU’s argument that the “merging 

network device” from the preamble of the claim constitutes corresponding structure is improper. 

See, e.g., 755 Patent, claim 23 (claiming a “merging network device comprising . . . means for 

receiving traffic.”) (emphasis added); see also Net MoneyIn, Inc., 545 F.3d at 1366 (Fed. Cir. 

2008). In addition, the term “merging network device” is not defined within the specification, is 

not defined by any extrinsic evidence from WSOU, and WSOU does not claim that the term has a 

generally understood meaning in the art. The end result is again that the term “merging network 

device” is akin to a generic general purpose computer, which itself generally cannot serve as 

corresponding structure. See Ex. 2, Lavian Declaration, at ¶¶ 119-124; see also Williamson, 792 

F.3d at 1352. 

 As before, none of the litany of block citations included in WSOU’s Opening Brief (see

Opening Brief, at 24-25) disclose specific structural components or algorithms of the “merging 

network device” that are clearly linked to and can accomplish the claimed function. See Ex. 2, 

Lavian Declaration, at ¶¶ 125-132. For example, the 755 Patent at 2:7-32 (cited by WSOU) merely 

describes the high-level function of re-routing bi-directional LSP traffic upon detection of a 

failure, without disclosing any specific structures or algorithms that perform the identified function 

of claim 23. See Ex. 2, Lavian Declaration, at ¶ 126. In addition, the passage at 2:43-60 discusses 

functionality of the originating network device rather than WSOU’s purported structure of the 

“merging network device.” See Ex. 2, Lavian Declaration, at ¶ 127. WSOU’s other citations are 

equally unavailing, and fail to recite structure clearly linked to the claimed function. See Ex. 2, 

Lavian Declaration, at ¶¶ 128-132 . As such, claim 23 is indefinite and invalid.

IV. U.S. Patent No. 8,417,112 (“the ’112 Patent”) (Case No. 6:20-cv-00540) 

The ’112 Patent is directed a switching method/apparatus having “improved accuracy in 

monitoring a network to determine when to switch” to avoid faulty communication links by 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 40 of 47
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preventing a switch from being triggered by transient BERs because transient BERs would cause 

unnecessary re-routing of traffic within the network. ’112 Patent, Abstract (emphasis added) and 

4:3-17. In particular, a BER hysteresis algorithm is provided to determine BER degradation and 

when to switch as shown below. See id., Fig. 3. To prevent a switch of transmission port from 

being triggered by transient BERs (a momentary increase of the BER due to various events, such 

as a movement of an optical fiber, some power fluctuation, etc.), the BER hysteresis algorithm 

requires “monitor[ing] BER values and comparing the most current BER values with older BER 

values” (e.g., steps 318, 320) to determine whether the collected BERs really worsen over time 

after/in response to determining a certain number of BERs have exceeded a threshold (e.g., steps 

310, 312, 314). See id., 1:49-59; 4:3-12; 5:12-49; and Fig. 3. 

A. “determining whether said collected BER values worsen over time” (claims 

1, 11) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“determining whether said collected BER 

values worsen over time by comparing one or 

more of said recent ones of said collected 

BER values with said other collected BER 

values” 

Plain and ordinary meaning 

 The term “determining whether said collected BER values worsen over time” appears in 

claims 1 and 11 as part of the limitation “in response to a determination that each of said recent 

ones of said collected BER values exceeds the predetermined BER threshold level, determining 

whether said collected BER values worsen over time.” The Court should construe this term as the 

meaning is vague and is not commonly known to a person of ordinary skill in the art. Moreover, 

the Court should construe this term in light of the disavowal of claim scope by the patent applicant 

during prosecution related to this term. Huawei’s proposed construction should be adopted by the 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 41 of 47
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Court as it is consistent with the disavowal of claim scope by the patent applicant during 

prosecution related to this limitation. 

i. The Patent Applicant Disavowed the Full Scope of the Claim Term 

During Prosecution by Specifying that the “Determining” as Claimed 

is an Affirmative Step by Comparing the Collected BER Values 

 During prosecution of the application that would eventually issue as the ’112 Patent, the 

patent applicant filed an Appeal Brief from the third final Office Action.21 In that Office Action, 

the patent examiner had concluded that the Vieregge prior art reference discloses the abovereferenced limitation because Vieregge discloses triggering a switch of a transmission port upon 

bit error rate (BER) values deteriorating to a certain level (e.g., two BER thresholds are crossed in 

a short enough period of time, or a rate of increase between two BER measurements exceeding 

some value, etc.). See Ex. 6, “Appl. Ser. No. 10/448,559, 11/19/2008 final Office Action,” at 2, 

10-12. The examiner had determined that BER deterioration indicates that the BER values have 

been determined to worsen over time, and so “otherwise why bother to switchover.” Ex. 7, “Appl. 

Ser. No. 10/448,559, 11/09/2009 Examiner’s Answer,” at 13-14, 19. In response, the patent 

applicant explicitly rejected that such an “indication” can meet the above-identified limitation. See

generally, Ex. 8, “Appl. Ser. No. 10/448,559, 09/09/2008 Office Action response,” Ex. 9, “Appl. 

Ser. No. 10/448,559, 04/13/2009 Appeal Brief” and Ex. 10, “Appl. Ser. No. 10/448,559, 

09/02/2009 Reply Brief”. Specifically, the patent applicant stated that “if two thresholds are 

crossed in a short enough period of time, then the decision to instigate protection switching is made 

. . . does not teach or suggest” the above-referenced limitation. Ex. 9, “Appl. Ser. No. 10/448,559, 

04/13/2009 Appeal Brief,” at 17. 

 

21 The patent examiner issued eight substantial rejections (including non-final and final 

Office Actions and Examiner’s Answer to an Appeal Brief) during a prosecution that lasted for 

over ten years. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 42 of 47
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 In order to secure allowance of the ’112 Patent, the patent applicant further clarified that 

“determining whether said collected BER values worsen over time” cannot be merely “indicated” 

by BER deterioration, but is rather an affirmative step that should be performed by comparing 

collected BER values (step 318) after/in response to determining that recent ones of said collected 

BER values exceed a predetermined BER threshold level (step 314) according to the flow chart in 

Fig. 3. See Ex. 9, “Appl. Ser. No. 10/448,559, 04/13/2009 Appeal Brief,” at 15 (excerpt as shown 

and annotated below). 

 The patent applicant further explicitly confirmed that “Figure 3, 314, 318, 320; Pg. 8, Lines 

5-30 [of the originally-filed application]” are associated with the current limitation. Ex. 9, “Appl. 

Ser. No. 10/448,559, 04/13/2009 Appeal Brief,” at 8. The portion indicated by the patent applicant 

(reproduced below) provides the only enabling method as to how to determine whether said 

collected BER values worsen over time. See Medicines Company v. Mylan, Inc., 853 F.3d 1296, 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 43 of 47
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1309 (Fed. Cir. 2017) (holding that the claims are limited to a single embodiment when that is the 

only enabling description provided in the specification). 

At step 318, the method 300 compares the BER value stored in address 2023 with 

the BER values stored in addresses 2024-202 10; the BER value stored in 

address 2022 with the BER values stored in addresses 2023-20210; and the BER 

value stored in address 202[1], with the BER values stored in addresses 2022-20210. 

At step 320, the method 300 determines whether the BER values worsen over time. 

Upon an affirmative determination that the BER values worsen over time, the 

method 300 proceeds to step 328. 

’112 Patent, 5:34-46. Thus, Applicant disavowed any claim to the “plain and ordinary meaning” 

for this disputed term in question when it made the statements above to secure allowance of the 

‘112 Patent. See Poly-America, L.P. v. API Industries, Inc., 839 F.3d 1131, 1136 (Fed. Cir. 2016) 

(“Disavowal can be effectuated by language in the specification or the prosecution history.”) 

Huawei’s proposed construction thus reflects the true scope of the current term in view of the 

prosecution history and specification. 

ii. Huawei’s Proposed Construction Accords with the Specification and 

Claim Language and is Not Duplicative or Confusing 

The affirmative step of determining whether said collected BER values worsen over time 

as argued by the patent applicant is the crux of the alleged invention of the ’112 Patent. The ’112 

Patent recognizes an issue of “transient BERs” where “various events occur which cause a 

momentary increase of the BER,” and so requires such an additional step to ensure a switch would 

not be triggered solely by a BER threshold being exceeded momentarily. See ’112 Patent, 4:3-9 

(“These transient BERs cause unnecessary re-routing of traffic within the network 100. . . One 

way to prevent transient BERs is to monitor BER values and compare the most current BER values 

with older BER values.”) Accordingly, the specification teaches an array for storing and 

comparing collected BERs to determine when to switch. See id., Figs. 2-3 and 4:12-47 (“FIG. 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 44 of 47
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2 depicts an embodiment of an array 200 having ten addresses 202 1-202 10 (collectively 

addresses 202). FIG. 3 depicts a flow diagram of a method of utilizing the array”). 

In its Opening Brief, WSOU argues that “Defendant’s additional recitation in their proposal 

is confusing, as it simply states that some value(s) should be compared with other value(s), but 

that concept is already included in the term itself.” Opening Brief, at 26. Not so. The “recent 

ones of said collected BER values” as recited in Huawei’s proposed construction are not merely 

“some values” as asserted by WSOU. Instead, in view of the claim language, “recent ones of said 

collected BER values” are the collected BER values that exceed the predetermined BER threshold 

level. See ’112 Patent, claims 1 and 11 (“in response to a determination that each of said recent 

ones of said collected BER values exceeds the predetermined BER threshold level”). Therefore, 

Huawei’s proposed construction is not confusing or duplicative. 

WSOU further argues that “it is unclear how comparing merely one recent value can show 

‘worsen over time.’” Opening Brief, at 27. WSOU’s claim of ignorance is belied by the 

disclosures of the ’112 Patent itself. For example, if there are ten BER values being collected: 

BER1 (recent one) through BER10, and BER1 is determined to be worse than BER2 through BER10, 

it can be determined that BER values worsen over time. See ’112 Patent, 5:40-42. As such, and 

based on the clear disavowal of claim scope by the patent applicant as outlined above, the Court 

should adopt Huawei’s proposed construction. 

 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 45 of 47
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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-00533-ADA Document 46 Filed 03/05/21 Page 46 of 47
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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

 

Case 6:20-cv-00533-ADA Document 46 Filed 03/05/21 Page 47 of 47