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.

ZTE CORPORATION, ZTE (USA) INC. 

AND ZTE (TX), INC.,

Defendants.

C.A. NO. 6:20-cv-00489-ADA

C.A. NO. 6:20-cv-00492-ADA

C.A. NO. 6:20-cv-00495-ADA

DEFENDANTS’ SUR-REPLY AND SUPPLEMENTAL REPLY CLAIM 

CONSTRUCTION BRIEF

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 1 of 23
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TABLE OF CONTENTS

I. U.S. PATENT NO. 7,487,240 (CASE NO. 6:20-CV-00489-ADA) ...................................1

A. Disputed Term 1: “verifying connectivity in the network relating to at 

least Layer-2 and Layer-3 objects” (Claims 1, 6, and 13) .......................................1

B. Disputed Term 2: “a given containment hierarchy for the network” 

(Claims 1, 6, and 13)................................................................................................4

C. Disputed Term 5: “the connectivity verification result(s) associated with 

the alarm” (Claims 1, 6, and 13)..............................................................................5

II. U.S. PATENT NO. 8,147,071 (CASE NO. 6:20-CV-00492-ADA) ...................................7

A. Disputed Term 1: “the processor” / “wherein the processor is configured 

to” (Claims 1, 9, 13, and 14)....................................................................................7

B. Disputed Term 2: “movement signaling” / “receiv[ing] movement 

signaling associated with the movement of the projector” / “corresponding 

movement signaling” (Claims 1, 9, 13, and 14) ......................................................9

C. Disputed Term 3: “discriminate” / “discriminate a movement criterion” / 

“the processor is configured to discriminate a movement criterion” 

(Claims 1, 13, and 14)............................................................................................10

D. Disputed Term 4: “provide associated image data signaling to project 

associated image data” (Claims 1, 13, and 14)......................................................11

E. Disputed Term 5: “a movement sensor configured to detect movement of 

the apparatus and/or a projector” (Claim 9)...........................................................12

III. U.S. PATENT NO. 9,258,232 (CASE NO. 6:20-CV-00495-ADA) .................................13

A. Disputed Term 1: “instructions for execution by a traffic flow control 

system for performing flow control on a flow of data packets for 

transmission over a link” (Claim 14).....................................................................13

1. “Flow Control”...........................................................................................13

2. Means-plus-function Term.........................................................................14

B. Disputed Term 2: “transmission over a link” (Claims 1 & 14) .............................17

C. Disputed Term 5: “instructions for receiving, by a controller of the traffic 

flow control system, a backpressure signal, wherein the back pressure 

signal indicates a period of congestion” (Claim 14)..............................................17

IV. CONCLUSION..................................................................................................................18

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 2 of 23
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TABLE OF AUTHORITIES

Page(s)

Cases

CloudofChange, LLC v. NCR Corporation,

Civ. No. 6:19-cv-00513-ADA, 2020 WL 4004810 (W.D. Tex. Jul. 15, 2020) ......................14

Collaborative Agreements, LLC v. Adobe Systems Inc.,

Case No. A-14-CV-356-LY, 2015 WL 2250391 (W.D. Tex. May 12, 2015) ........................16

Cypress Lake Software, Inc. v. Samsung Electronics America, Inc.,

382 F. Supp. 3d 586 (E.D. Tex. May 10, 2019).....................................................................5, 6

International Test Solutions, Inc. v. Mipox International Corp., 

2017 WL 1367975 at *5-6 (N.D. Cal. Apr. 10, 2017) ..............................................7, 9, 10, 16

Interval Licensing LLC v. AOL, Inc., 

766 F.3d 1364 (Fed. Cir. 2014) ............................................................................................. 7-8

Halliburton Energy Services, Inc. v. M-I LLC,

514 F.3d 1244 (Fed. Cir. 2008) .......................................................................................1, 4, 12

Nautilus Inc. v. Biosig Instruments, Inc.,

572 U.S. 898 (2014)...........................................................................................................3, 6, 7

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

521 F.3d 1351, 1362 (Fed. Cir. 2008) .....................................................................................14

Saso Golf, Inc. v. Nike,

843 Fed.Appx. 291 (Fed. Cir. 2021) ...............................................................................1, 4, 12

Williamson v. Citrix Online, LLC,

792 F.3d 1339, 1350 (Fed. Cir. 2015)......................................................................................16

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 3 of 23
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I. U.S. Patent No. 7,487,240 (Case No. 6:20-cv-00489-ADA)

A. Disputed Term 1: “verifying connectivity in the network relating to at least 

Layer-2 and Layer-3 objects” (Claims 1, 6, and 13)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112 (b)

WSOU’s substantive arguments are that (1) “verifying” and “connectivity” are commonly 

understood and thus cannot be indefinite; and (2) the specification provides sufficient support. 

WSOU is incorrect.

First, with respect to alleged commonly used “verifying” and “connectivity,” WSOU Reply 

Brief, pp. 1-2, individual words may certainly have individual meanings but still be indefinite 

when used in phrases in a claim. See, e.g., Saso Golf, Inc. v. Nike, 843 Fed.Appx. 291, 292-93, 298 

(Fed. Cir. 2021) (affirming a district court’s judgment that a claim was indefinite because the court 

could not be reasonably certain what was being claimed, although individual claim terms “toe” 

and “heel,” specifically of a golf club, had identifiable individual meanings); Halliburton Energy 

Services, Inc. v. M-I LLC, 514 F.3d 1244, 1256 (Fed. Cir. 2008) (affirming a district court that 

found the claim term “fragile gel” to be indefinite). Thus, WSOU’s argument here is utterly at 

odds with Federal Circuit precedent. Merely because “connectivity” and “verification” have 

individual meanings, the terms cannot be automatically considered definite or to convey the scope 

of the claims. Instead, like the above-cited cases, the test is whether a PHOSITA can reasonably 

ascertain the meaning of the claims.

Here, the claim does not recite limitations that explain what it means for “verifying 

connectivity” to occur, and a PHOSITA would not be able to ascertain whether “verifying 

connectivity” was occurring or not, particular in relation to “at least Layer-2 and Layer-3 objects.”

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 4 of 23
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Second, WSOU points to the specification as somehow resolving this issue, but the 

specification fails to recite what it means to verify connectivity of Layer-2 and Layer-3 objects. 

WSOU cites the ’240 patent, 9:36-44, however, nothing in this disclosure describes how the 

connectivity of Layer-2 and Layer-3 objects is verified—only that Layer-2 and Layer-3 objects are 

highlighted. Nothing in the specification links “connectivity verification application 502” to 

verifying connectivity of Layer-2 and Layer-3 objects, and WSOU’s claim that this portion of this 

specification is “in the context of verifying connectivity in the network relating to Layer-2 and 

Layer-3 objects,” WSOU Reply Brief, p. 2, does not and cannot remedy this deficiency. WSOU’s 

post-hoc rationalization cannot be allowed to convey the requisite definiteness.

WSOU next resorts to citing to portions of the specification where Layer-2 and Layer-3 

objects are not recited. WSOU Reply Brief, p. 2. WSOU implies that Layer-2 and Layer-3 objects 

might be “specified source and destination managed entities,” “routers and IP interfaces,” and 

“selected managed entities and unmanaged entities,” citing ’240 patent, 10:66-11:42, 15:25-42, 

but nothing in the specification bears this out. WSOU also does not explain which of these nouns 

apply as descriptions to “Layer-2 objects” or “Layer-3 objects.” Even if WSOU had, it would be 

error to read the various limitations implied here by WSOU into the claims. WSOU further argues

that connectivity verification may be accomplished by ping and traceroute commands. WSOU 

Reply Brief, p. 2. But the specification discussion of ping and traceroute commands does not and 

cannot explain the meaning of the claimed “verifying connectivity in the network relating to at 

least Layer-2 and Layer-3 objects” because ping and traceroute commands are never discussed in 

the specification in relation to “Layer-2” and “Layer-3” objects. See generally, ’240 patent. At one 

point, the specification states that “verifying connectivity in a service provider IP/MPLS 

communication network in a network manage-ment context using an NMS system is addressed 

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 5 of 23
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by: performing directed ping and traceroute connectivity verification tests between specified 

source and destination managed entities.” ’240 patent, 15:25-31. WSOU cites to this section as 

support in the specification for definiteness, but it is plainly evidence that Layer-2 and Layer-3 

objects are not recited here. For example, a PHOSITA would not have been able to ascertain 

whether the claimed “at least Layer-2 and Layer-3 objects” are either or both “source and 

destination managed entities.” Additionally, a number of limitations from the above-cited portion 

and in the portions cited by WSOU for support would need to be included in the claims for the 

claim to be understood by a PHOSITA, and the need to read and link multiple elements into the 

claims—that are not linked in the specification—provides ample support for a finding of 

indefiniteness.

WSOU’s remaining arguments are not relevant to the substantive issues raised by ZTE. 

WSOU appeals to the Court that ZTE cites the incorrect standard for this analysis. As is plainly 

evident, ZTE only cites to Nautilus, and not some pre-Nautilus standard. And, WSOU’s complaint 

is immaterial because the Supreme Court explicitly stated that “imprecision just short of that 

rendering a claim ‘insolubly ambiguous’ would diminish the definiteness requirement’s publicnotice function and foster the innovation-discouraging ‘zone-of uncertainty.’” Nautilus Inc. v. 

Biosig Instruments, Inc., 572 U.S. 898, 911 (emphasis added). Satisfying the “insolubly 

ambiguous” standard that is demonstrably and logically more rigorous than the new standard in 

Nautilus would clearly satisfy the Nautilus standard for indefiniteness. Moreover, ambiguity that 

cannot be resolved inherently means that a PHOSITA would not be able to reasonably determine

the scope of the claim. Id.at 901.

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 6 of 23
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B. Disputed Term 2: “a given containment hierarchy for the network” (Claims 

1, 6, and 13)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112 (b)

WSOU argues that because one word in a claim has a meaning that the claim cannot be 

indefinite. WSOU Reply Brief, p. 3. This is demonstrably incorrect.

Individual words may certainly have individual meanings but still be indefinite when used

in phrases in a claim. See, e.g., Saso Golf, Inc. v. Nike, 843 Fed.Appx. 291, 292-93, 298 (Fed. Cir. 

2021); see also Halliburton Energy Services, Inc. v. M-I LLC, 514 F.3d 1244, 1256 (Fed. Cir. 

2008). Thus, WSOU’s argument here is utterly at odds with Federal Circuit precedent. Merely 

because “given” has a commonly understood meaning does not confer definiteness for the full 

term “a given containment hierarchy for the network.” Instead, like the above-cited cases, the test 

is whether a PHOSITA can reasonably ascertain the meaning of the claims. Here, the claim does 

not recite limitations that explain why the “containment hierarchy” is “given,” under any definition 

or understanding of the word “given.”

WSOU provides a conclusory analysis that the claims and specification explain what this 

full limitation means, WSOU Reply Brief, p. 4, but fails to identify anything in the claims or the 

specification that provides such an explanation. This is because nothing in the claims and 

specification contains any discussion of what a “given containment hierarchy” might be.

WSOU states that the prosecution history does not define the term, WSOU Reply Brief, p.. 

4, and ZTE agrees. As ZTE explains in its brief, stating that the “given containment hierarchy” 

defines “Layer 2 and Layer 3 objects” does nothing to explain the meaning of “given containment 

hierarchy.” Furthermore, the limitation that “given containment hierarchy defines Layer 2 and 

Layer 3 objects” is not recited in the claims, and it is not discussed anywhere in the specification. 

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 7 of 23
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WSOU avoids any explanation of this statement in the prosecution history, and ZTE agrees that 

the applicant’s statement cannot be relied on for definiteness. Without any reasonably 

ascertainable meaning of what “a given containment hierarchy for the network” is, and without 

any relevant discussion or recitations in the claims, specification or prosecution history, this claim 

term is indefinite. 

C. Disputed Term 51: “the connectivity verification result(s) associated with the 

alarm” (Claims 1, 6, and 13)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b) 

WSOU’s sole substantive argument is that a PHOSITA would have understood with 

reasonable certainty that “the phrase ‘associated with the alarm’ is linked to [] other elements” of 

claim 1. WSOU Supp. Brief, pp. 1-3. However, WSOU’s post-hoc rationale is unsupported by the 

claims and the specification. The claims fail to indicate when “connectivity verification results” 

may be “associated with the alarm” or when they are not. WSOU is unable to point to anything in 

the claims and specification that resolves this ambiguity. WSOU highlights further portions of

claim 1 only to claim that the blue highlighted portions, see WSOU Supp. Brief, p. 2, “makes the 

scope clear to a PHOSITA with reasonable certainty.” This is not true, and WSOU fails to provide 

further explanation. None of the blue highlighted portions, see WSOU Supp. Brief, p. 2, provide 

what it means to be associated to any “alarm.” Further, the claim does not state whether 

connectivity verification results become “associated with the alarm” once a number of results are 

collected, once the specified connectivity verification threshold is reached, or when some other 

criterion is met. 

1 This supplemental term, and the respective allowed briefing pages, is included herein from ZTE 

Defendants’ respective “reply” brief. The numbering “5” acknowledges the first 4 terms as briefed 

in ZTE Defendants’ Opening Brief (of which Terms 3-4 were withdrawn).

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 8 of 23
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WSOU further cites to a portion of the specification that WSOU admits does not contain 

the claim language. WSOU Supp. Brief, p. 3 (citing ’240 patent, 9:20-30). Nothing in this citation 

states when “connectivity verification thresholds” are “associated with the alarm.” At best, the 

citation portion recites both “results” and “the alarm” in the same sentence, however, this does 

nothing to explain which results are selected for propagation or what causes results to become 

“associated with the alarm,” as claimed. Further, by citing to this paragraph, it is unclear if WSOU 

attempts to read in portions of this sentence relating to “connectivity verification thresholds,” but 

it would be error to do so. 

WSOU’s remaining arguments are not relevant to the substantive issues raised by ZTE.

First, WSOU appeals to the Court that ZTE cites the incorrect standard for this analysis. 

As is plainly evident, ZTE only cites to Nautilus, and not some pre-Nautilus standard. And, 

WSOU’s complaint is at best immaterial because the Supreme Court explicitly stated that 

“imprecision just short of that rendering a claim ‘insolubly ambiguous’ would diminish the 

definiteness requirement’s public-notice function and foster the innovation-discouraging ‘zone-of 

uncertainty.’” Nautilus, 572 U.S. at 809 (emphasis added). Satisfying the “insolubly ambiguous” 

standard that is demonstrably and logically more rigorous than the new standard in Nautilus would 

clearly satisfy the Nautilus standard for indefiniteness. Moreover, ambiguity that cannot be 

resolved inherently means that a PHOSITA would not be able to reasonably determine the scope 

of the claim. Id.at 901.

Second, WSOU argues that the prosecution history contains support for the claim 

limitation, WSOU Supp. Brief, pp. 2-3, but it does not. WSOU fails to cite a portion of the 

specification that recites “verifying connectivity in the network for at least Layer-2 and Layer-3 

objects.” Like WSOU’s flawed analysis of the specification, this claim term is simply not recited 

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 9 of 23
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in cited portion. To the extent WSOU asks the Court to incorporate some portions of the cited 

paragraph into the claims, WSOU does not explain what those portions are, and this need to 

incorporate whole paragraphs and entirely new elements and limitations into the claims for them 

to be understood demonstrates the indefiniteness issues with the claim terms.

II. U.S. Patent No. 8,147,071 (Case No. 6:20-cv-00492-ADA)2

A. Disputed Term 1: “the processor” / “wherein the processor is configured to”

(Claims 1, 9, 13, and 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

First, ZTE does not waive its indefinite arguments with respect to claim 1, despite WSOU’s 

claim to the contrary. WSOU Reply Brief, p. 5. Claims may still be indefinite for additional reasons 

beyond lack of antecedent basis.

Second, WSOU argues that the claim term “the processor is configured to” sufficiently 

describes the legal boundaries of the patent grant, WSOU Reply Brief, p. 6, but it does not. A 

PHOSITA would not have been able to ascertain whether a processor is configured in any 

particular way because it is impossible for a PHOSITA to determine with reasonable certainty 

what a configured processor is. Nothing in the claims or the specification provide meaning for this 

claim limitation in the form it is presented in the claims. When nothing provides a “clearly defined 

2 As a preliminary matter, WSOU generally alleges that Defendants’ filing of Inter Partes Review 

(IPR) petitions at U.S. Patent and Trademark Office (USPTO) indicate that the claims are not 

indefinite. This is incorrect. First, a claim is not definite merely because a party “can ascribe some 

meaning to a patent's claims.” Nautilus, 572 U.S. at 911 (emphasis in original). Second, the PTAB has 

no jurisdiction to consider indefiniteness arguments in IPR proceedings. See 35 U.S.C. § 311(b). All 

pending IPR petitions expressly reserve the right to advance this very indefiniteness position in the 

litigation, so WSOU’s complaints of inconsistency is meritless. And for each disputed issue, the IPR 

petitions adopt WSOU’s proposed constructions and do not weigh in on whether the respective 

terms are indefinite.

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 10 of 23
8

embodiment of what the skilled artisan would understand[,] [s]uch ambiguity falls within the 

innovation-discouraging zone of uncertainty against which [the Supreme Court] warned.” 

International Test Solutions, Inc. v. Mipox International Corp., 2017 WL 1367975 at *5-6 (N.D. 

Cal. Apr. 10, 2017) (citing Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1374 (Fed. Cir. 

2014)) (stating that “[b]readth stemming from ambiguity is not [permitted].”).

Here, WSOU cites to portions of the specification, WSOU Reply Brief, p. 6, that include a 

number of limitations that are not included in the claims (i.e., “to be connected to the movement 

sensor 3 and to receive movement signaling that is provided by the movement sensor 3” and “to 

be connected to the projector 2 and to provide image data signalling as an output signal”). WSOU 

argues that the claims are conferred meaning when read in light of the specification, but several 

important limitations present in the specification are not present in the claims, and thus the scope 

of the claims is unhinged from the specification. Accordingly, a PHOSITA would be unable to 

ascertain the scope and meaning of the claims.

Third, WSOU argues that claim 13 does not have an antecedent basis issue because any 

missing terms that exist from claim 1 may simply be read into claim 13. WSOU Reply Brief, p. 6.

For instance, WSOU states that the processor provides image data signalling to a projector. But, 

WSOU does not state what receives “movement signaling associated with movement of the 

projector” as required by claim 13. This demonstrates the issue with attempting to read limitations 

into the claims because, even though WSOU is motivated to do so, WSOU does not resolve the 

ambiguity created by antecedent basis issue. Simply switching “the” to “a” in this circumstance 

does not resolve the ambiguity. In this case, claim 13 fails to recite what does the “receiving” and 

what does the “providing.” Accordingly, the antecedent basis issue may not simply be resolved 

and claim 13 is indefinite.

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 11 of 23
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B. Disputed Term 2: “movement signaling” / “receiv[ing] movement signaling 

associated with the movement of the projector” / “corresponding movement 

signaling” (Claims 1, 9, 13, and 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

WSOU argues that the claim term sufficiently describes the legal boundaries of the patent 

grant, WSOU Reply Brief, p. 7, but it does not. A PHOSITA would not have been able to ascertain 

whether movement signaling was being received or not because it is impossible for a PHOSITA 

to determine with reasonable certainty what movement signaling is in the context of the patent. 

Nothing in the claims or the specification provide meaning for this claim limitation in the form it 

is presented in the claims. When nothing provides a “clearly defined embodiment of what the 

skilled artisan would understand[,] [s]uch ambiguity falls within the innovation-discouraging zone 

of uncertainty against which [the Supreme Court] warned.” International Test Solutions, Inc., 2017 

WL 1367975 at *5-6 (stating that “[b]readth stemming from ambiguity is not [permitted].”).

Here, WSOU provides no support for meaning of the claimed “movement signaling” in the 

specification, and there is none. WSOU claims that an applicant need not sweep in every 

embodiment into the claims, but “movement signaling” is not explained in the specification in 

relation to any embodiment. There is nothing to separate the claimed “movement signaling” from 

electronic signals and smoke signals. And, the subject claims are ambiguous as to its outer bounds 

because the claimed “movement signaling” is not sufficiently connected to other claim limitations 

(i.e., “associated,” “corresponding”). Accordingly, a PHOSITA would be unable to ascertain the 

meaning of the claims.

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 12 of 23
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C. Disputed Term 3: “discriminate” / “discriminate a movement criterion” / 

“the processor is configured to discriminate a movement criterion” (Claims 

1, 13, and 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

WSOU points to detection as an analog to “discriminate,” WSOU Reply Brief, p. 8, but 

the claims and specification provide no link that connects the term “discriminate” to the term 

“detect.” WSOU’s position is nonsensical as well. If “discriminate” in claim 1 is meant to mean 

“detect,” then the claims would effectively be re-written to claim that “the processor is configured 

to detect a movement criterion.” Nothing in the claims or specification indicate that the processor 

detects a movement criterion. Each recitation in the specification reflects detection of the 

movement criterion by the movement sensor, not the processor. Indeed, WSOU’s formulation is 

problematic because dependent claims 9 and 10 already recite a “movement sensor is configured 

to detect movement.” (emphasis added). Thus, WSOU’s argument that “discriminate” means 

“detect” cannot be correct.

WSOU also argues that the claim term “discriminate” sufficiently describes the legal 

boundaries of the patent grant, WSOU Reply Brief, p. 8, but it does not. A PHOSITA would not 

have been able to ascertain whether discriminate was being conducted or not because it is 

impossible for a PHOSITA to determine with reasonable certainty what it means to “discriminate” 

is in the context of the patent. Nothing in the claims or the specification provide meaning for this 

claim limitation in the form it is presented in the claims. When nothing provides a “clearly defined 

embodiment of what the skilled artisan would understand[,] [s]uch ambiguity falls within the 

innovation-discouraging zone of uncertainty against which [the Supreme Court] warned.” 

International Test Solutions, 2017 WL 1367975 at *5-6 (stating that “[b]readth stemming from 

ambiguity is not [permitted].”). Here, WSOU provides no support for the claimed “discriminate” 

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 13 of 23
11

in the specification outside its flawed construction of “detect” as discussed above, and there is 

none. The claims are wholly divorced from the specification. And, the subject claims are 

ambiguous as to its outer bounds. Accordingly, a PHOSITA would be unable to ascertain the 

meaning of the claims and the claims are indefinite.

D. Disputed Term 4: “provide associated image data signaling to project 

associated image data” (Claims 1, 13, and 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

WSOU explicitly supplies a definition for this term—beyond its proposed “plain & 

ordinary meaning”—but this definition is not apparent from reading the claim and further 

demonstrates why this limitation is ambiguous and thus indefinite. WSOU states “that the 

‘associated image data signaling’ and the ‘associated image data’ are associated with the 

movement.” WSOU Reply Brief, p. 9. If this were true, this meaning should have been included 

in WSOU’s construction, but fatally, it is not.

Nevertheless, WSOU’s newly proposed construction is not evident from the claim. Claims 

1, 13, and 14, recite several limitations preceding the recitation of “associated image data 

signaling” and “associated image data,” including “the processor,” “the projector,” “received 

movement signaling,” “indication of one or more movement criterion of the projector,” and “a 

movement criterion.” WSOU presents yet another option of being associated with “movement” 

that the reader must somehow assume applies from the prior paragraph. This claim is ambiguous 

because it is impossible for a PHOSITA to discern which of these associations is correct. As such, 

a PHOSITA would be unable to ascertain the meaning of the claims.

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 14 of 23
12

E. Disputed Term 53

: “a movement sensor configured to detect movement of the 

apparatus and/or a projector” (Claim 9)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112(b)

WSOU argues that because one word in a claim has a meaning that the claim cannot be 

indefinite. WSOU Supp. Brief, pp. 4-5. This is demonstrably incorrect. Individual words may 

certainly have individual meanings but still be indefinite when used in phrases in a claim. See, e.g., 

Saso Golf, Inc. v. Nike, 843 Fed.Appx. 291, 292-93, 298 (Fed. Cir. 2021); see also Halliburton 

Energy Services, Inc. v. M-I LLC, 514 F.3d 1244, 1256 (Fed. Cir. 2008). Thus, WSOU’s argument 

here is utterly at odds with Federal Circuit precedent. Merely because “and/or” has a commonly 

understood meaning does not confer definiteness. Instead, like the above-cited cases, the test is 

whether a PHOSITA can reasonably ascertain the scope of the claims. WSOU admits that the 

claim attempts to claim two different embodiments. WSOU Supp. Brief, pp. 4-5. However, the 

claim cannot satisfy the 35 U.S.C. § 112(b) requirement of particularly pointing out subject matter 

if it recites multiple distinct, exclusive embodiments.

WSOU attempts to identify sections of the specification that match up to the two exclusive 

embodiments, WSOU Supp. Brief, pp. 4-5, but is unsuccessful in doing so. For the first 

embodiment, WSOU assumes the apparatus includes the projector and “the movement sensor is 

mounted to the apparatus.” WSOU Supp. Brief, p. 4. In doing so, WSOU reads limitations into the 

claims that would exclude the other embodiment. For the second embodiment, WSOU identifies a 

section of the specification that identifies that “the projector aspect may be a sub-aspect of the 

totality of the apparatus.” WSOU Supp. Brief, p. 5 (citing ’071 patent, 9:45-55). However, the 

3 This supplemental term, and the respective allowed briefing pages, is included herein from ZTE 

Defendants’ respective “reply” brief. The numbering “5” acknowledges the first 4 terms as briefed 

in ZTE Defendants’ Opening Brief.

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 15 of 23
13

projector as a “sub-aspect” has nothing to do with the subject claim limitation that recites “a 

movement sensor configured to detect movement of the apparatus and/or a projector.” Merely 

because a projector may be a sub-aspect does not alleviate the issue that the specification fails to 

state anywhere that a movement sensor is somehow supposed to detect movement of the projector 

either as some sub-component of the apparatus or as a distinct and separate component of the 

apparatus. See generally, ’071 patent. WSOU fails to address how the movement sensor would 

interact in the second embodiment altogether. This is unsurprising because the specification never 

discusses such an embodiment. WSOU’s attempted rationalizations further illustrate the ambiguity 

of the subject limitation and the lack of disclosure in the specification that might resolve the 

ambiguity.

III. U.S. Patent No. 9,258,232 (Case No. 6:20-cv-00495-ADA)

A. Disputed Term 1: “instructions for execution by a traffic flow control system 

for performing flow control on a flow of data packets for transmission over a 

link” (Claim 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Governed by 35 U.S.C. § 112(f)

Function: execution by a traffic flow control system for performing 

flow control on a flow of data packets for transmission over a link 

Indefinite under 35 U.S.C. § 112(b); 

Structure: none disclosed. 

Additionally, “flow control” means “regulate movement of a series 

of data packets”

1. “Flow Control”

WSOU’s sole substantive argument is that ZTE’s proposed definition for “flow control” is 

superfluous and baseless. WSOU Reply Brief, p. 11. On the contrary, ZTE briefed the Court as to 

why the data packets moving through the claimed “link” constitute a series of data packets, as is 

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supported by the ’232 specification. ZTE Defendants Opening Brief, pp. 18-19. WSOU ignored 

this point entirely, and ZTE’s point stands unrebutted that the definition of “flow control” should 

be defined as “regulate movement of a series of data packets.” ZTE also states that a PHOSITA 

would have understood flow control to have ZTE’s construction at the time of the invention. ZTE 

Defendants Opening Brief, p. 18. WSOU did not respond to this point either. 

“Because the parties disagree about the scope of the term, the term requires construction 

by the Court.” CloudofChange, LLC v. NCR Corporation, Civ. No. 6:19-cv-00513-ADA, 2020 

WL 4004810 at *3 (W.D. Tex. Jul. 15, 2020) (citing O2 Micro Int’l Ltd. v. NCR Corporation, v. 

Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008)). In such construction 

disputes, this Court and every other patent Court have a long history of resolving such disputes by 

determining appropriate meaning of claim terms. Id.

2. Means-plus-function Term

WSOU fails to address the lack of disclosure of “instructions,” a “computer-readable 

medium,” a “processor,” or any similar term in the ’232 specification, as pointed out by ZTE in its 

opening brief—thereby confirming the lack of structure for this term. ZTE Defendants Opening 

Brief, p. 21. In fact, the claim only recitesthe bare recitation that the instructions are on a computerreadable medium. And, unlike the Cypress case,

4 here, the ’232 specification is void of any 

discussion of “instructions” or similar supporting the alleged function, or means for supporting 

any relevant structure. The ’232 patent claims and specification certainly do not describe a 

touchscreen, one or more processors, or any other structural element that interacts with the claimed 

“instructions” other than the “computer-readable storage medium” in the claims. Specifically, 

4 Cypress Lake Software, Inc. v. Samsung Electronics America, Inc., 382 F. Supp. 3d 586 (E.D. 

Tex. May 10, 2019).

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without some system of carrying out the claimed “instructions,” the claims lack sufficient 

structure.

WSOU admits that “a processor” is recited in the patent discussed in the Cypress case, but 

WSOU fails to point to similar structural components relevant to the claimed “instructions” of the 

’232 patent. The claims and specification do not recite “a processor” or any other system of 

carrying out or executing the claimed “instructions.” WSOU clings to a bare recital by claim 14 of 

a “traffic flow control system,” a “link,” and a “controller,” but these limitations are not particular 

to the claimed “instructions” or claim 14. See ’232 patent, claims 1, 8. And, of course, nothing in 

the specification discusses sufficient structure to tie a “traffic flow control system,” a “link,” or a 

“controller” to the claimed instructions—limitations that were determined necessary in the Cypress 

case. Cypress, 382 F. Supp. 3d at 655-56; see id., 643, 649, 660, 661, 665.

WSOU’s concentration on an “objectives and operations” analysis is incomplete, and 

WSOU fails to identify any objectives and operations relevant to the claimed “instructions.”5

WSOU Reply Brief, p. 12. For instance, for claim 14 of the ’232 patent, no limitation exists for “a 

processor.” WSOU states that claim 14 states the “instructions for execution by a traffic flow 

control system,” but nothing in claim 14 or the specification describes the traffic flow control 

system as including a processer, having the capability to execute code, or any similar limitation. 

Thus, even under the “objectives and operations” standard, claim 14 fails to recite enough structure 

5 Tellingly, each time “objections and operations” is applied in Cypress, it is because the claims in 

Cypress were determined to describe “the objectives and operations of the processor programmed 

to execute the recited ‘code configured to.’ In other words, the claim language provides a 

description of how the processor is specifically programmed to operate.” Cypress, 382 F. Supp. 3d 

at 655-56; see id., 643, 649, 660, 661, 665. Every time this analysis is applied, specific structure 

is recited, and in particular specific programming by a processor. The reason for this is that the 

Federal Circuit’s test is whether “persons skilled in the art would understand the [claim term] to 

connote the structure needed to perform the operations recited by the claim language.” Linear 

Technology Corp. v. Impala Linear Corp., 379 F.3d 1311, 1319 (Fed. Cir. 2004) (emphasis added).

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because they do not claim a processor, a computer, or any other system that would execute the 

claimed “instructions” or the requisite specific programming. WSOU attempts to gloss over the 

processor and specific programming that would be necessary to implement any such claimed 

“instructions,” but WSOU’s attempt to change the method of analysis cannot hide the lack of 

structure recited in claim 14 and the specification. 

WSOU also erroneously argues that ZTE isolates the analysis of only the claimed 

“instructions,” and WSOU takes a single sentence from ZTE’s brief to extrapolate this theory.

6

WSOU Reply Brief, p. 12. WSOU is incorrect. ZTE recites the entirety of claim 14 in its briefing, 

and explicitly states that “instructions for” is recited four times in claim 14, illustrating the use of 

“instructions” as a placeholder and demonstrating a need for means-plus-function construction

because the term as used in the claim fails to denote sufficient structure. ZTE Defendant Opening 

Brief, pp. 20-21. WSOU does not deny or address this point.

WSOU next cites to a Federal Circuit case discussing 35 U.S.C. § 101, Beauregard, WSOU 

Reply Brief, p. 8, but the case has nothing to do with means-plus-function and the Federal Circuit 

certainly did not bless all versions of future claims that claim “a computer-readable medium” under 

35 U.S.C. § 112. In re Beauregard, 53 F.3d 1583 (Fed. Cir. 1995).

WSOU also cites to Collaborative Agreements, but the court there analyzed claims 

incorporating “processors” that were coupled to a computer-readable medium with computer 

6 ZTE’s statement that the term “instructions” does not denote sufficient structure follows Federal 

Circuit precedent that “[g]eneric terms such as ‘mechanism,’ ‘element,’ ‘device,’ and 

other nonce words that reflect nothing more than verbal constructs may be used in a claim in a 

manner that is tantamount to using the word ‘means’ because they ‘typically do not connote 

sufficiently definite structure’ and therefore may invoke § 112, para. 6.” Williamson v. Citrix 

Online, LLC, 792 F.3d 1339, 1350 (Fed. Cir. 2015). This is the case when a term, like module, “is 

simply a generic description for software or hardware that performs a specified function.” Id.

Accordingly, it is appropriate to consider whether the word itself is a nonce word, and 

“instructions” is a nonce word because it fails to denote sufficient structure.

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programs—unlike claim 14 here. Collaborative Agreements, LLC v. Adobe Systems Inc., Case No.

A-14-CV-356-LY, 2015 WL 2250391, *16 (W.D. Tex. May 12, 2015).

B. Disputed Term 2: “transmission over a link” (Claims 1 & 14)

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite under 35 U.S.C. § 112 (b)

WSOU argues that the claim term sufficiently describes the legal boundaries of the patent 

grant, WSOU Reply Brief, p. 11, but it does not. A PHOSITA would not have been able to 

ascertain whether flow control was being conducted or not because it is impossible for a PHOSITA 

to determine with reasonable certainty what “a link” is in the context of the patent. Nothing in the 

claims or the specification provide meaning for this claim limitation in the form it is presented in 

the claims. When nothing provides a “clearly defined embodiment of what the skilled artisan 

would understand[,] [s]uch ambiguity falls within the innovation-discouraging zone of uncertainty 

against which [the Supreme Court] warned.”7 Here, WSOU provides no support for the claimed

“link” in the specification without further limitations (i.e., “serial link”), and there is none. The 

claims are wholly departed from the specification. The subject claims are ambiguous as to its 

bounds because the claimed “link” is not connected to any other limitation except that it conveys 

data packets. 

C. Disputed Term 58: “instructions for receiving, by a controller of the traffic 

flow control system, a backpressure signal, wherein the back pressure signal 

indicates a period of congestion” (Claim 14)9

WSOU’s Proposed 

Construction

Defendants’ Proposed Construction

7 International Test Solutions, 2017 WL 1367975 at *5-6. 8 This supplemental term, and the respective allowed briefing pages, is included herein from ZTE 

Defendants’ respective “reply” brief. The numbering “5” acknowledges the first 4 terms as briefed 

in ZTE Defendants’ Opening Brief (of which Terms 3-4 were withdrawn).

9 WSOU argues that ZTE’s ’071 patent IPR somehow affects this ’232 patent term. WSOU Supp. 

Reply Br. at 8-9. This appears to be a copy-and-paste error, and WSOU is incorrect.

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Plain and ordinary meaning Governed by 35 U.S.C. § 112(f)

Function: receiving, by a controller of the traffic flow control 

system, a backpressure signal, wherein the back pressure signal 

indicates a period of congestion

Indefinite under 35 U.S.C. § 112(b); 

Structure: none disclosed. 

WSOU merely copies its arguments for the first “instructions” term, disputed term 1, and 

fails to address the claim distinctions for this term. See WSOU Supp. Brief, pp. 5-8. As such, ZTE 

Defendants further incorporate their reply from the first “instructions” term, see Section III.A.2 

above and the arguments raised in its opening brief. ZTE Defendants Supp. Brief, pp. 5-6.

IV. CONCLUSION

For the foregoing reasons, Defendants request that the Court adopt Defendants’ proposed 

constructions.

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DATED: May 7, 2021 Respectfully submitted,

/s/Lionel M. Lavenue 

Lionel M. Lavenue 

Virginia Bar No. 49,005

lionel.lavenue@finnegan.com 

FINNEGAN, HENDERSON, FARABOW, 

GARRETT & DUNNER, LLP

1875 Explorer Street, Suite 800

Reston, VA 20190

Phone: (571) 203-2700

Fax: (202) 408-4400

ATTORNEY FOR DEFENDANTS

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 22 of 23
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CERTIFICATE OF SERVICE

The undersigned hereby certifies 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 on May 7, 2021.

/s/Lionel M. Lavenue 

 Lionel M. Lavenue

Case 6:20-cv-00489-ADA Document 77 Filed 05/07/21 Page 23 of 23