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. 

GOOGLE LLC, 

Defendant. _______________________________________________ 

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§ 

§ 

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§ 

Civil Case No. 6:20-cv-571-ADA 

Civil Case No. 6:20-cv-578-ADA 

Civil Case No. 6:20-cv-583-ADA 

Civil Case No. 6:20-cv-584-ADA 

JURY TRIAL DEMANDED 

SUR-REPLY IN SUPPORT OF DEFENDANT 

GOOGLE LLC’S RESPONSIVE CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00571-ADA Document 41 Filed 03/12/21 Page 1 of 12
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TABLE OF AUTHORITIES 

Page 

CASES

Aristocrat Techs. Ltd. v. Int’l Game Tech., 

521 F.3d 1328 (Fed. Cir. 2008)..................................................................................................6 

Blackboard, Inc. v. Desire2Learn, Inc., 

574 F.3d 1371 (Fed. Cir. 2009)..................................................................................................6 

CAE Screenplates, Inc. v. Heinrich Fiedler GmbH, 

224 F.3d 1308 (Fed. Cir. 2000)..................................................................................................1 

CollegeNET, Inc. v. MarketLinx, Inc., 

Case No. 9-544, 2010 WL 11566364 (W.D. Tex. Sept. 10, 2010) ........................................3, 4 

Egenera, Inc. v. Cisco Sys., Inc., 

972 F.3d 1367 (Fed. Cir. 2020)..............................................................................................5, 6 

International Visual Corp. v. Crown Metal Mfg. Co., 

991 F.2d 768 (Fed. Cir. 1993)....................................................................................................2 

Nystrom v. TREX Co., 

424 F.3d 1136 (Fed. Cir. 2005)..................................................................................................3 

Rain Comp., Inc. v. Samsung Elecs. Am., Inc., 

2021 WL 786361 (Fed. Cir. Mar. 2, 2021) ................................................................................5 

Robert Bosch, LLC v. Snap-On Inc., 

769 F.3d 1094 (Fed. Cir. 2014)..................................................................................................6 

Thorner v. Sony Computer Entm’t Am. LLC, 

669 F.3d 1362 (Fed. Cir. 2012)..................................................................................................3 

Wang Labs., Inc. v. Am. Online, Inc., 

197 F.3d 1377 (Fed. Cir. 1999)..................................................................................................2 

WSOU Invs. LLC v. Microsoft Corp., 

Case No. 20-454, Dkt. 49 (W.D. Tex. Jan. 8, 2021) ..................................................................3 

Zeroclick, LLC v. Apple Inc., 

891 F.3d 1003 (Fed. Cir. 2018)..................................................................................................6 

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TABLE OF ABBREVIATIONS 

Abbreviation Description 

WSOU Plaintiff WSOU Investments, LLC d/b/a Brazos License and 

Development 

Google Defendant Google LLC 

’728 patent U.S. Patent No. 7,777,728 

’825 patent U.S. Patent No. 9,335,825 

POSITA Person Of Ordinary Skill In The Art 

* Emphasis added unless indicated otherwise. 

** For the Court’s convenience, Google cites to WSOU’s opening brief, Google’s responsive 

brief, and WSOU’s reply brief by referring to the briefs and exhibits filed in Civil Case No. 

6:20-cv-578-ADA (which is the same for all of the above-captioned cases) and to the 

pagination generated by CM/ECF (at the top of the page) rather than the pagination at the 

bottom of the page. 

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I. U.S. PATENT NO. 7,777,728 (CASE NO. 6:20-CV-583-ADA) 

A. “tap direction” (claims 1, 11, 16) 

Google’s Construction WSOU’s Construction 

tap direction that extends between the first tap 

position and a second tap position

plain and ordinary meaning 

The question before the Court is whether a “tap direction” is a direction between two taps 

(as Google contends), or a direction between two touches (as WSOU contends). Rather than 

argue this question on the merits, however, WSOU attempts a two-step shuffle: first assuming 

without evidence that its interpretation of “tap direction” is the plain and ordinary meaning, and 

then asking the Court to adopt “plain and ordinary meaning” as the construction. Both steps fail: 

the Court should not find a term to have its plain and ordinary meaning where, as here, the 

parties dispute that meaning; and if there is a plain and ordinary meaning of “tap direction,” it is 

a direction between two taps, not a direction between two touches. 

WSOU argues that its between-two-touches construction “does not read the word ‘tap’ 

out of the claims,” (Dkt. 36 at 6), but its brief confirms the opposite. WSOU claims that because 

the word “touch” appears elsewhere in the claims, “as evident by the claim language itself, the 

‘tap direction’ is dependent on the detected ‘touch[es]’ of the touch sensitive display,” and 

“WSOU’s construction thus does not read the word ‘tap’ out of the claims as Google contends.” 

(Id.) But WSOU’s argument asks the Court to construe “tap” to mean “touch”―the definition of 

reading “tap” out of the claims. The patentee used “tap” instead of “touch” in the phrase “tap 

direction”—and the plain and ordinary meaning of “tap” is a press-down followed by a lift-up in 

the same location. “In the absence of any evidence to the contrary, we must presume that the use 

of these different terms in the claims connotes different meanings.” CAE Screenplates, Inc. v. 

Heinrich Fiedler GmbH, 224 F.3d 1308, 1317 (Fed. Cir. 2000). The Court should not construe 

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“tap direction” to require no tapping at all. 

WSOU claims that “Google commits the ‘cardinal sin’ of importing limitations from the 

specification” by quoting language from what WSOU calls “a paragraph qualifying that the 

description is merely ‘[t]o illustrate the method’ and also as ‘an example.’” (Dkt. 36 at 7.) But 

WSOU misstates Google’s argument, and its selective quotation misstates the specification. 

Columns 7-8 and accompanying Figure 9 are the specification’s only discussion of a user’s 

interaction with the claimed invention, and the only discussion of its specifics. (Ex. 1 at 7:1 to 

8:52, Fig. 9.) This portion of the specification provides “an example,” but it is not an example 

embodiment but an example of text input to the single embodiment described in the specification. 

Wang Labs., Inc. v. Am. Online, Inc., 197 F.3d 1377, 1383 (Fed. Cir. 1999) (“claims were 

correctly interpreted as limited” to the “only embodiment described in the ‘669 patent 

specification”). 

Seeking to avoid the contemporaneous Nokia manual confirming that “tap” means “tap,” 

WSOU claims that “[t]he ‘728 patent lacks any reference to the Nokia N770 product”—ignoring 

the picture of the N770 in the ‘728 specification. (Dkt. 36 at 7-8; compare Ex. 2 at 2 with Ex. 1 

at Fig. 6; see also Ex. 1 at Fig. 1-3, 7-9b.) WSOU also argues that “it would be improper to 

consider the commercial embodiment when construing the claim term,” (Dkt. 36 at 8 (citing 

International Visual Corp. v. Crown Metal Mfg. Co., 991 F.2d 768, 772 (Fed. Cir. 1993))), but 

WSOU again misstates Google’s argument. Google did not ask the Court to consider the 

limitations of the N770 itself, but rather patentee Nokia’s understanding of the term “tap” set 

forth in the contemporaneous N770 manual. Even if the N770 were unrelated to the ‘728 patent, 

its manual would still demonstrate patentee Nokia’s understanding of “tap” at the time of filing, 

just as WSOU argues that Microsoft’s publications show its understanding of a disputed term. 

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WSOU Invs. LLC v. Microsoft Corp., Case No. 20-454, Dkt. 49 at 33 (W.D. Tex. Jan. 8, 2021). 

Although the close relation of the N770 to the ‘728 confirms Nokia’s understanding of “tap” in 

the specific context of keyboard input, it would be relevant even without that close connection. 

Id. Nokia’s understanding further confirms that “tap” means “tap,” and that the Court’s 

construction of “tap direction” should give meaning to both “tap” and “direction.” 

Finally, WSOU briefly argues that “Google fails to allege either of the recognized 

exceptions to plain and ordinary meaning—lexicography or disavowal,” and that, “[a]ccordingly, 

the plain and ordinary meaning of ‘tap direction’ should stand and no construction is needed.” 

(Dkt. 36 at 6 (citing Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 

2012).) This argument suffers from several flaws. First, to the extent that “tap direction” has a 

plain and ordinary meaning, it is a direction between two taps, not a direction between two 

touches. Second, Thorner says no such thing, stating instead that “[t]he words of a claim are 

generally given their ordinary and customary meaning as understood by a person of ordinary 

skill in the art when read in the context of the specification and prosecution history,” Thorner, 

669 F.3d at 1365 (citing Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc)). 

But construing a term to have the “ordinary and customary meaning as understood by a person of 

ordinary skill in the art when read in the context of the specification and prosecution history” is 

not the same thing as construing a term to have its plain and ordinary meaning, Thorner does not 

say otherwise, and the law is replete with contrary examples. See Nystrom v. TREX Co., 424 

F.3d 1136, 1145-46 (Fed. Cir. 2005); CollegeNET, Inc. v. MarketLinx, Inc., Case No. 9-544, 

2010 WL 11566364, at *7 (W.D. Tex. Sept. 10, 2010). The Court should not follow WSOU into 

error. 

II. U.S. PATENT NO. 9,335,825 (CASE NO. 6:20-CV-578-ADA) 

A. “continuous wave doppler radar” (claims 1 and 19) 

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NAI-1516734622v1 

Google’s Construction WSOU’s Construction Alternate Construction 

a Doppler radar that emits an 

uninterrupted electromagnetic 

signal 

plain and ordinary meaning a Doppler radar that emits a 

continuous electromagnetic 

signal that is not pulsed

WSOU does not dispute that the term “continuous wave doppler radar” refers to a 

doppler radar that emits an electromagnetic signal. (Dkt. 36 at 8-9.) WSOU also agrees that a 

“continuous wave doppler radar” is not pulsed. (Id.) According to WSOU, “[t]he only dispute is 

whether Google should be allowed to replace the claim language ‘continuous wave’ with 

‘emit[ing] an uninterrupted electromagnetic signal.”‘ (Id. at 9 (original emphasis).) 

Google’s construction simply articulates the ‘825 patent’s distinction between 

“continuous” and pulsed by giving the term “continuous” its commonly understood meaning of 

“uninterrupted.” (Ex. 3 at 4:22-25 (“The Doppler radar does not have to be on continuously and 

may be pulsed to save power.”).); (Ex. 4 at 003 (defining “continuous” as “uninterrupted; 

unbroken”).) This definition reflects both the commonly understood meaning of the term 

“continuous” and the requirement, based on the ‘825 patent’s specification and prosecution 

history, that a “continuous wave doppler radar” is not pulsed. 

Despite agreeing that “continuous wave doppler radar” cannot be pulsed, WSOU asserts 

that Google’s definition of “continuous” could be “misapplied” to exclude Frequency Modulated 

Continuous Wave Doppler radar. (Dkt. 36 at 9.) Google’s brief shows that is wrong (Dkt. 34 at 

10), and WSOU still cannot explain why or how Google’s construction could be applied that 

way. Nonetheless, in an effort to reach common ground, Google is amenable to construing 

“continuous wave doppler radar” as “a doppler radar that emits a continuous electromagnetic 

signal that is not pulsed.” This obviates a dictionary definition and makes clear that a 

“continuous wave doppler radar” in the context of the ‘825 patent cannot encompass a radar 

emitting a pulsed electromagnetic signal—a point on which both parties agree. (Dkt. 36 at 8-9.) 

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B. “at least one memory and the computer program code are configured, with 

the at least one processor, to cause the apparatus to ... detect that an 

application is being started ... [and] turn on a continuous wave doppler 

radar” (claim 1) 

Google’s brief establishes that this term is subject to § 112, ¶ 6 and indefinite for lack of 

corresponding structure. (Dkt. 34 at 11-13.) WSOU does nothing to negate these showings. In 

fact, WSOU avoids substantive discussion of this Court’s Dyfan decision, which explained that 

applicants cannot “simply recite two nonce words—’processor’ and ‘code’—together in order to 

essentially write the claim in a means-plus-function format without being subject to § 112, ¶ 6.” 

Dyfan, Dkt. 57, at 20 n.4. Dyfan’s analysis is further strengthened by the Federal Circuit’s recent 

holding that “disclosure of computer-readable media or storage devices” is insufficient structure. 

Rain Comp., Inc. v. Samsung Elecs. Am., Inc., 2021 WL 786361, at *4 (Fed. Cir. Mar. 2, 2021). 

WSOU’s reply raises a series of meritless arguments. First, WSOU states that Google 

“treats ‘processor,’ ‘memory,’ and ‘computer program code’ as nonce words, which can operate 

as substitutes for ‘means.’” (Dkt. 36 at 10.) Yet the claims and specification do so themselves. 

Given the intrinsic record, these names “amount to generic terms or black box recitations of 

structure or abstractions.” Egenera, Inc. v. Cisco Sys., Inc., 972 F.3d 1367, 1373 (Fed. Cir. 

2020). WSOU’s related argument about functional claiming misses the point. (Dkt. 36 at 10.) 

The law “does not permit patentees to freely engage in functional claiming while circumventing

§ 112(f) simply by avoiding the word ‘means.’” Egenera, 972 F.3d at 1372-73. 

Second, WSOU contends that the specification describes processors and memory as 

structure. (Dkt. 36 at 10.) That is wrong in several respects. Even if “processor” and “memory” 

may connote some degree of structure, that is irrelevant. “The question is not whether a claim 

term recites any structure but whether it recites sufficient structure.” Egenera, 972 F.3d at 1374. 

WSOU’s own citations to the ‘825 patent (Dkt. 36 at 10-11) demonstrate that a processor and 

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memory “refer[] only to a general category of whatever may perform the specified functions.” 

Robert Bosch, LLC v. Snap-On Inc., 769 F.3d 1094, 1099 (Fed. Cir. 2014). Indeed, the ‘825 

patent’s description of processors as having interfaces “via which data and/or commands are 

output ... [and] input” (Ex. 3 at 5:22-47), establish that the processor and memory are nothing 

more than boundless placeholders for anything that could perform the claimed function. Section 

112, ¶ 6 thus applies because “the claims and specification provide no structural limitation to the 

inputs, outputs, connections, and operation.” Egenera, 972 F.3d at 1375. 

Third, WSOU’s reliance on Zeroclick, LLC v. Apple Inc., 891 F.3d 1003 (Fed. Cir. 2018) 

is misplaced. There, the Federal Circuit remanded for the district court to conduct a proper 

analysis of whether the phrase “user interface code” connoted sufficient structure by describing 

“specific references to conventional graphical user interface programs or code.” Id. at 1008. 

Here, generic reference to “processor” and “memory” fails to impart sufficient structure. 

Finally, WSOU’s arguments regarding corresponding structure under step two are waived 

as not raised in its opening brief and legally wrong. WSOU does not identify any passage that 

“clearly links or associates” any structure to perform the claimed functions. At most, WSOU’s 

passing citations describe when the claimed function occurs or its result. Neither suffices under 

§ 112, ¶ 6. Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1383 (Fed. Cir. 2009) 

(rejecting assertion that “describing when the computer would perform the function ... 

constituted a sufficient description of the structure”); Aristocrat Techs. Ltd. v. Int’l Game Tech., 

521 F.3d 1328, 1335 (Fed. Cir. 2008) (describing “results of the operation of an unspecified 

algorithm” is insufficient). 

 

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NAI-1516734622v1 

Date: March 12, 2021 Respectfully submitted, 

/s/ Tharan Gregory Lanier, with permission 

by Michael E. Jones 

 Tharan Gregory Lanier (pro hac vice) 

Jones Day 

1755 Embarcadero Road 

Palo Alto, California, 94303 

+1 (650) 739-3939 

+1 (650) 739-3900 facsimile 

tglanier@jonesday.com 

Michael E. Jones (Texas Bar No. 10929400) 

Patrick C. Clutter (Texas Bar No. 24036374) 

Potter Minton, P.C. 

110 North College, Suite 500 

Tyler, Texas, 75702 

+1 (903) 597-8311 

+1 (903) 593-0846 facsimile 

mikejones@potterminton.com 

patrickclutter@potterminton.com 

 

 Matthew S. Warren (California Bar No. 

230565) 

Jennifer A. Kash (California Bar No. 203679) 

(pro hac vice) 

Erika Warren (California Bar No. 295570) 

Warren Lex LLP 

2261 Market Street, No. 606 

San Francisco, California, 94114 

+1 (415) 895-2940 

+1 (415) 895-2964 facsimile 

20-583@cases.warrenlex.com 

Sasha Mayergoyz 

Jones Day 

77 W. Wacker Drive 

Chicago, IL 60601 

+1 (312) 782-3939 

smayergoyz@jonesday.com 

Joseph M. Sauer 

Jones Day 

North Point 

901 Lakeside Avenue 

Cleveland, Ohio 44114-1190 

Case 6:20-cv-00571-ADA Document 41 Filed 03/12/21 Page 10 of 12
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NAI-1516734622v1 

+ 1 (216) 586-3939 

jmsauer@jonesday.com 

Sanjiv P. Laud 

Jones Day 

90 South Seventh Street 

Suite 4950 

Minneapolis, Minnesota 55402 

+ 1 (612) 217-8800 

slaud@jonesday.com 

David E. Anderson 

Jones Day 

325 John H. McConnell Blvd, Suite 600 

Columbus, OH 43215 

+1 (614) 281-3617 

danderson@jonesday.com 

Attorneys for Defendant Google LLC

 

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NAI-1516734622v1 

CERTIFICATE OF SERVICE 

 The undersigned certifies that on March 12, 2021, I electronically filed this document with 

the Clerk of Court via the Court’s CM/ECF system which will send notification of such filing to 

all counsel of record, all of whom have consented to electronic service in this action. 

 /s/ Michael E. Jones 

 

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