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.

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CIVIL ACTION 6:20-cv-00537-ADA

CIVIL ACTION 6:20-cv-00539-ADA

PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 1 of 11
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TABLE OF CONTENTS

I. Legal Standards..................................................................................................................... 1

II. U.S. Patent No. 7,860,512 (Case No. 6:20-cv-00537-ADA)................................................. 1

1. “capacity” ..........................................................................................................................1

III. U.S. Patent No. 8,200,224 (Case No. 6:20-cv-00539-ADA)................................................. 3

1. “selecting a first candidate base station using said evaluation of said signal 

quality from said first measurement report” (claim 1)......................................................3

2. “executable program means for causing a base station to perform the method 

when the program is run on the base station” (claim 15) .................................................4

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 2 of 11
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TABLE OF AUTHORITIES

Cases

01 Communique Laboratory, Inc. v. LogMeIn, Inc.,

687 F.3d 1292 (Fed. Cir. 2012)................................................................................................... 4

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

755 F.3d 1326 (Fed. Cir. 2014)................................................................................................... 3

CloudofChange, LLC v. NCR Corp.,

No. 6-19-CV-00513-ADA, 2020 WL 4004810 (W.D. Tex. July 15, 2020)............................... 1

Collaborative Agreements, LLC v. Adobe Systems Inc.,

Case No. A–14–CV–356–LY, 2015 WL 2250391 (W.D. Tex. 2015)........................................ 6

Comark Comm’ns, Inc. v. Harris Corp.,

156 F.3d 1182 (Fed. Cir. 1998)................................................................................................... 2

Cypress Lake Software, Inc. v. Samsung Elecs. Am., Inc.,

382 F. Supp. 3d 586 (E.D. Tex. 2019) ........................................................................................ 5

Phillips v. AWH Corp.,

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

SecurityProfiling, LLC v. Trend Micro America, Inc.,

No. 3:17-CV-1484-N, 2018 WL 4585279 (N.D. Tex. Sept. 25, 2018) ...................................... 6

SimpleAir, Inc. v. Sony Ericsson Mobile Commc’ns AB,

820 F.3d 419 (Fed. Cir. 2016)..................................................................................................... 2

Syncpoint Imaging, LLC v. Nintendo of America Inc.,

No. 215CV00247JRGRSP, 2016 WL 55118 (E.D. Tex. Jan. 5, 2016) ...................................... 6

Unwired Planet, LLC v. Apple Inc.,

829 F.3d 1353 (Fed. Cir. 2016)................................................................................................... 2

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)................................................................................................... 4

Zeroclick, LLC v. Apple Inc.,

891 F.3d 1003 (Fed. Cir. 2018)................................................................................................... 5

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 3 of 11
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Plaintiff WSOU Investments, LLC d/b/a Brazos License and Development (“WSOU”)

submits the following opening claim construction brief. 

I. Legal Standards

This Court recently explained that “[t]he ‘only two exceptions to [the] general rule’ that 

claim terms are construed according to their plain and ordinary meaning are when the patentee 

(1) acts as his/her own lexicographer or (2) disavows the full scope of the claim term either in the 

specification or during prosecution.” CloudofChange, LLC v. NCR Corp., No. 6-19-CV-00513-

ADA, 2020 WL 4004810, at *2 (W.D. Tex. July 15, 2020) (quoting Thorner v. Sony Computer 

Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as his/her own lexicographer, the 

patentee must ‘clearly set forth a definition of the disputed claim term,’ and ‘clearly express an 

intent to define the term.’” Id. (quoting Thorner, 669 F.3d at 1365). And “[t]o disavow the full 

scope of a claim term, the patentee’s statements in the specification or prosecution history must 

represent ‘a clear disavowal of claim scope.’” Id. (quoting Thorner, 669 F.3d at at 1366). 

“Accordingly, when ‘an applicant’s statements are amenable to multiple reasonable 

interpretations, they cannot be deemed clear and unmistakable.’” Id. (quoting 3MInnovative 

Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013)).

II. U.S. Patent No. 7,860,512 (Case No. 6:20-cv-00537-ADA)

1. “capacity”

WSOU’s Position Huawei’s Position

Plain and ordinary meaning. “load”

The “capacity” term requires no construction here. The word “capacity” appears in the 

’512 patent nearly two-hundred times (including in virtually every claim). The word choice of the 

patentee should control. Huawei violates fundamental claim construction principles in arguing 

that every instance of “capacity” recited in the claims should be rewritten as “load.”

First, Huawei violates the principle that “[t]here is presumed to be a difference in meaning 

and scope when different words or phrases are used in separate claims.” Comark Comm’ns, Inc. 

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 4 of 11
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v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998); see also Phillips v. AWH Corp., 415 F.3d 

1303, 1314 (Fed. Cir. 2005) (en banc) cert. denied, 546 U.S. 1170 (2006); (“Differences among 

claims can also be a useful guide in understanding the meaning of particular claim terms.”) 

(citation omitted); SimpleAir, Inc. v. Sony Ericsson Mobile Commc’ns AB, 820 F.3d 419, 431 (Fed. 

Cir. 2016) (reversing district court because the choice to use “data channel in claim 1 rather than 

‘data feed,’ notwithstanding use of the latter elsewhere in the patent, lends support to the 

conclusion that ‘data feed’ does not carry the same meaning as ‘data channel.’”); Unwired Planet, 

LLC v. Apple Inc., 829 F.3d 1353, 1358‒59 (Fed. Cir. 2016) (finding error in construing “voice 

input” to be limited to a voice input transmitted over a voice channel, but rather was broad enough 

to cover a voice input transmitted over a voice or data channel, and noting that in other claims the 

patentee had expressly claimed the use of a voice channel showing that had the patentee intended 

to limit “voice input” to transmission over a voice channel it could have done so with other 

language but did not). 

Applying the above authority, a comparison of claim 1 and claim 3 depending therefrom 

reveals that “capacity” cannot properly be interpreted as being interchangeable with “load” in 

terms of either meaning or scope. Claim 1 recites the “capacity” term nine times in various 

contexts, and in none of those instances is “capacity” expressly limited to “load.” By contrast, 

claim 3 recites “[t]he method of claim 1, wherein the radio capacity information indicates at least 

one of a current cell load and a maximum radio capacity of the radio cell, the current cell load and 

available radio capacity of the radio cell, a transport load of the transport network, the transport

load of a connection from one base station of the radio network to another base station of the radio 

network.” Claim 3 thus introduces certain alternatives that are each expressly tethered to—and 

further limit—the “radio capacity information” term. One of those alternatives refers to “the 

current cell load and available radio capacity of the radio cell.” ’512 patent, 11:52−58 (claim 3)

(emphasis added). A comparison of claims 1 and 3, therefore, reveals that the terms “capacity” 

and “load” are not interchangeable. Rather, the patentee indicated in the claim language itself 

those instances when “radio capacity information” is expressly limited in terms of “load” (e.g., 

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 5 of 11
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“current cell load” of claim 3). An analogous claim differentiation is also shown by a comparison 

of independent claim 11 and claim 13 depending therefrom. Under the circumstances, where 

different words or phrases are used in separate claims, it would be erroneous here to interpret 

“capacity” and “load” to carry the same meaning and scope.

As a corollary principle of claim construction, a difference in meaning is also presumed 

when different words or phrases are used in the same claim. Augme Techs., Inc. v. Yahoo! Inc., 

755 F.3d 1326, 1333 (Fed. Cir. 2014) (“[D]ifferent claim terms are presumed to have different 

meanings.”) (quoting Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1382 (Fed. 

Cir. 2008)). As explained above, claim 3 recites an alternative further limiting the “radio capacity 

information” term with both “current cell load” and “available radio capacity” requirements. Id., 

11:53−54. The recitation of both “capacity” and “load” requirements in the same limitation of the 

same claim only further underscores the presumption that “capacity” and “load” are not 

interchangeable in meaning and scope.

The specification also underscores the error in Huawei’s construction. For example, the 

specification states “[t]ypically it comprises parameters expressing information on the maximum 

available capacity of the cell and current load information expressed, for example, as a percentage 

of the maximum capacity. Alternatively, the radio capacity information may comprise a parameter 

reflecting the available radio capacity.” Id., 10:8−11. While the former embodiment tracks part 

of claim 3, the latter expresses an alternative where the “radio capacity information” includes a 

parameter that reflects “available radio capacity,” though not necessarily the current load.

III. U.S. Patent No. 8,200,224 (Case No. 6:20-cv-00539-ADA)

1. “selecting a first candidate base station using said evaluation of said 

signal quality from said first measurement report” (claim 1)

WSOU’s Position Huawei’s Position

Plain and ordinary meaning. “selecting a single candidate base station using 

said evaluation of said signal quality from said 

first measurement report”

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 6 of 11
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Huawei does not purport to offer any definition for any term recited in the disputed phrase, 

“selecting a first candidate base station ...,” apart from proposing to replace “first” with “single.”

Notably, Huawei proposes replacing “first” with “single” for only one of the two instances were 

“first” is recited in the disputed phrase (as emphasized by the highlighting above). The dispute

over this phrase, therefore, is only whether “a first candidate base station” should be restricted to 

“a single candidate base station” only. 

The clam language invokes the general rule that the article “a” or “an” means “one or more” 

in the absence of intrinsic evidence necessitating a contrary result. See 01 Communique 

Laboratory, Inc. v. LogMeIn, Inc., 687 F.3d 1292, 1297 (Fed. Cir. 2012) (citation omitted). “The 

exceptions to this rule are extremely limited: a patentee must evince a clear intent to limit ‘a’ or 

‘an’ to ‘one.’” Id. (quoting Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed.

Cir. 2008)). Here, there is no rare and exceptional fact that compels departing from the general 

rule.

Huawei also has taken the inconsistent position that “a first candidate base station” should 

be rewritten as “a single candidate base station,” yet “first measurement report” (recited in the 

same disputed phrase) somehow does not invoke the same “single” construction. By 

acknowledging “first” should remain unchanged when it qualifies “measurement report,” Huawei 

has tacitly admitted that there is likewise no need to modify the “first” qualifier modifying 

“candidate base station.” 

For each one of the foregoing independent reasons, Huawei’s narrowing claim construction 

should be rejected.

2. “executable program means for causing a base station to perform the 

method when the program is run on the base station” (claim 15)

3. WSOU’s Position Huawei’s Position

Plain and ordinary meaning; and does not

invoke 35 U.S.C. § 112, ¶6. 

If the court finds the term invokes § 112, ¶6, 

however, then:

Subject to 35 U.S.C. § 112, ¶6.

Function: causing a base station to perform 

the method when the program is run on the 

base station.

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 7 of 11
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Function: causing a base station to perform 

the method of claim 1.

Structure: executable program code 

configured when executed to cause the base 

station to perform the method of claim 1; the 

example flowchart shown in Fig. 1 and its 

accompanying written description; example 

signaling described with reference to Figs. 

2−4; the example selecting process described 

with reference to Fig. 5; the base station 

described with reference to Fig. 6; and 

equivalents of any of the foregoing.

Structure: the Fig. 1 flowchart 100 of a 

handover method in a base station of a mobile 

communication system, and equivalents 

thereof.

The phrase “executable program means for causing a base station to perform the method 

when the program is run on the base station” recites sufficient structure to rebut the presumption 

that use of the word “means” invokes 35 U.S.C. § 112, ¶ 6. Williamson v. Citrix Online, LLC, 792 

F.3d 1339, 1348 (Fed. Cir. 2015). It is significant here that the disputed phrase does not merely 

recite “means for” followed by purely functional language. Rather, the “means for” is itself 

modified by the structural requirement “executable program.” In addition, the “executable 

program” is both (1) structurally tied to the “base station” upon which “the program is run” and

(2) structurally limited in that it must “caus[e] the base station to perform the method” of claim 1, 

in its entirety. When viewing claim 15 as a whole, therefore, the context in which the “means for” 

term is recited provides sufficient structure to avoid application of 112, ¶ 6. See Cypress Lake 

Software, Inc. v. Samsung Elecs. Am., Inc., 382 F. Supp. 3d 586, 643 (E.D. Tex. 2019), 

reconsideration denied, No. 6:18-CV-30-JDK, 2019 WL 4935280 (E.D. Tex. Aug. 23, 2019) 

(“[W]hether recitation of ‘instruction’ performing a function is governed by § 112, ¶ 6 depends on 

whether the stated objectives and operation of the code connote sufficiently definite structure.”) 

(citing Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1319-21 (Fed. Cir. 2004) 

(finding that “circuit [for performing a function]” was sufficiently definite structure because the 

claim recited the “objectives and operations” of the circuit)). 

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 8 of 11
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That the surrounding context of claim 15 connotes structure appears to be undisputed. In 

arguing that the term invokes § 112, ¶ 6, Huawei argues that the flowchart 100 of Figure 1 discloses 

exemplary structure corresponding to the claim language. The flowchart of Figure 1 discloses a 

series of steps (100−108), each closely tracking a respective step of the method of claim 1. If 

Figure 1 discloses structure corresponding to the disputed term, as Huawei contends, then 

sufficient structure is recited in the claim language itself. This is because the claimed “executable 

program” is recited in the limiting context of, “causing a base station to perform the method [of 

claim 1] when the program is run on the base station.” ’224 patent, 10:58−61 (emphasis added).

Even if one were to set aside the structural limitations provided in the surrounding context, 

the recitation of “executable program” is itself analogous to terms which have been found to recite 

sufficient structure to avoid means-plus-function construction under § 112, ¶6. See, e.g., Zeroclick, 

LLC v. Apple Inc., 891 F.3d 1003, 1009 (Fed. Cir. 2018) (“The district court thus erred by 

effectively treating ‘program’ and ‘user interface code’ as nonce words and concluding in turn that 

the claims recited means-plus-function limitations.”); Collaborative Agreements, LLC v. Adobe 

Systems Inc., Case No. A–14–CV–356–LY, 2015 WL 2250391, *12‒*14 (W.D. Tex. 2015), 

denying reconsideration after transfer, Case No. 15-cv-03853-EMC, 2015 WL 7753293, *4‒*8 

(N.D. Cal. Dec. 2, 2015) (finding “code-segment” had sufficient structure to avoid being treated 

as a means-plus-function limitation); SecurityProfiling, LLC v. Trend Micro America, Inc., No. 

3:17-CV-1484-N, 2018 WL 4585279, *2−*3 (N.D. Tex. Sept. 25, 2018) (term “code” was not a 

“nonce” term and therefore would not be treated as a means-plus-function limitation); Syncpoint 

Imaging, LLC v. Nintendo of America Inc., No. 215CV00247JRGRSP, 2016 WL 55118, *23−*24 

(E.D. Tex. Jan. 5, 2016) (claim limitations reciting “instructions for detecting” and “instructions 

for processing” were not means-plus-function limitations because the term “instruction” connoted 

sufficient structure of computer program code).

If the Court is inclined to find that the disputed phrase of claim 15 invokes 35 U.S.C. § 112, 

¶ 6, notwithstanding the ample authority above instructing otherwise, then the corresponding 

structure should be interpreted as at least including: executable program code configured when 

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 9 of 11
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executed to cause the base station to perform the method of claim 1 (as recited in the claim 

language itself); the example flowchart shown in Fig. 1 of the ’224 patent and its accompanying 

written description; example signaling described with reference to Figs. 2−4; the example selecting 

process described with reference to Fig. 5; the base station described with reference to Fig. 6; and 

equivalents of any of the foregoing. This list of exemplary structure encompasses various 

embodiments and, consequently, it is not offered as a comprehensive set of requirements which 

must all be met if the Court were to apply a means-plus-function construction. It would be 

improper, for example, to conclude that the additional structural detail provided in Fig. 5 and its 

accompanying written description is necessarily required for all embodiments. Rather, as the ’224 

patent itself confirms, Fig. 5 provides further detail that may be applicable when executing step 

107 of Figure 1, according to certain example embodiments. ’224 patent, 7:15−16.

Dated: February 5, 2021 Respectfully submitted,

By: /s/ Ryan S. Loveless

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Brett A. Mangrum 

Texas Bar No. 24065671 

Travis L. Richins 

Texas Bar No. 24061296 

Jeff Huang 

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Brett@EtheridgeLaw.com 

Travis@EtheridgeLaw.com 

Jeff@EtheridgeLaw.com 

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 10 of 11
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Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

Counsel for Plaintiff WSOU Investments, LLC

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing instrument was served or delivered electronically 

via U.S. District Court [LIVE]- Document Filing System, to all counsel of record, on this the 30th 

day of February 5, 2021.

/s/ Ryan S. Loveless

Ryan S. Loveless 

Case 6:20-cv-00539-ADA Document 47 Filed 02/05/21 Page 11 of 11