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’ SUR-REPLY CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 1 of 32
- i - 

TABLE OF CONTENTS 

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) / “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

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) ............................................................................... 4

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

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

period” (claims 1, 4-7) ........................................................................................... 6

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

data retrieved through a Forward Error Correction function” (claims 4, 5) .......... 6

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

through the Forward Error Correction function” (claims 4, 5) .............................. 7

D. “means for calculating the Performance Monitoring function by 

implementing a correlation of the information regarding said correct and 

uncorrected blocks” (claims 4, 5) .......................................................................... 8

E. “implementing a Performance Monitoring Function based on data 

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

“classifying said blocks either as corrected or uncorrected through the 

Forward Error Correction function” (claims 6 and 7) ......................................... 10

III. U.S. Patent No. 7,508,755 (“the ’755 Patent”) (Case No. 6:20-cv-00535) ..................... 11

A. “originating network device” (claims 1, 3, 20) .................................................... 11

B. “switch over message” (claims 1, 5, 8, 10, 13, 16, 18, 20, 23, 25) ...................... 12

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

25) ........................................................................................................................ 14

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) ........................................................................................................................ 16

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 2 of 32
- ii - 

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) ........................................ 17

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) ............................................................................................................. 17

IV. U.S. Patent No. 8,417,112 (“the ’112 Patent”) (Case No. 6:20-cv-00540) ..................... 18

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

(claims 1, 11) ....................................................................................................... 18

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 3 of 32
- iii - 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

In re Beauregard, 

53 F.3d 1583 (Fed. Cir. 1995)....................................................................................................2 

Blackboard Inc. v. Desire2Learn, Inc., 

574 F.3d 1371 (Fed. Cir. 2009)..........................................................................................16, 17 

CLS Bank Int’l v. Alice Corp. Pty. Ltd., 

717 F.3d 1269 (Fed. Cir. 2013)..................................................................................................2 

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

519 F.3d 1366 (Fed. Cir. 2008)................................................................................................14 

Ergo Licensing, LLC v. CareFusion 303, Inc. 

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

Farstone Technology, Inc. v. Apple Inc., 

2015 WL 857706 (C.D. Cal. 2015) ............................................................................................3 

Global Equity Mgmt. (SA) Ptd. Ltd. v. Expedia, Inc., 

No. 2:16-cv-95, 2016 WL 7416132 (E.D. Tex. Dec. 22, 2016) ..............................................11 

Micro Chem., Inc. v. Great Plains Chem. Co., 

194 F.3d 1250 (Fed. Cir. 1999)................................................................................................10 

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

545 F.3d 1359 (Fed. Cir. 2008)..................................................................................................2 

Typhoon Touch Technologies, Inc. v. Dell, Inc., 

659 F.3d 1376 (Fed. Cir. 2011)..................................................................................................3 

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

2019 WL 4259020 (E.D. Tex. September 9, 2019) .................................................................11 

Williamson v. Citrix Online, LLC, 

792 F.3d 1339 (Fed. Cir. 2015)..............................................................................................3, 5 

Statutes 

35 U.S.C. § 112, ¶ 6 .......................................................................................................................11 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 4 of 32
- iv - 

TABLE OF EXHIBITS 

Exhibit Description 

Ex. A US 2003/00631613 A1 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 5 of 32
- v - 

TABLE OF PROPOSED CONSTRUCTIONS 

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 

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) 

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 

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 Subject to 35 U.S.C. § 112, ¶ 6 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 6 of 32
- vi - 

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) 

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 

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) 

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 

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 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 7 of 32
- vii - 

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 

 

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 

 

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 

F. “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 Plain and ordinary meaning 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 8 of 32
- viii - 

Structure: Indefinite for failure to disclose 

corresponding structure 

 

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 

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 

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

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 

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 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 9 of 32
- ix - 

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

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

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 

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 

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

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 

Plain and ordinary meaning 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 10 of 32
- x - 

BER values with said other collected BER 

values” 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 11 of 32
- 1 - 

Defendants Huawei Technologies USA Inc., et al., (collectively, “Huawei”) respectfully 

submit this Sur-Reply Claim Construction Brief to Plaintiff’s (“WSOU’s”) Reply Claim 

Construction Brief (“Reply”) (See, e.g., -00533, Dkt. 47). 

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) 

 WSOU does not respond to Huawei’s Responsive Brief, arguing instead about its 

understanding of the term “network resources.” Reply at 1. As can be clearly seen in Huawei’s 

proposed construction, however, Huawei does not construe the term “network resources,” but 

instead construes the otherwise undefined and ambiguous term “SRG (shared risk group) topology 

transformation of the network topology.” 

Huawei’s Responsive Brief established that the term “topology transformation” is 

described in the specification of the ’627 Patent as comprising “Link Transformation” and “Node 

Transformation,” and nothing else. Resp. at 2. This term would therefore be unsupported by the 

specification if it comprised anything more than these two items. See id. at 2. Moreover, Huawei’s 

Responsive Brief further demonstrated how network topologies are correspondingly and 

consistently described as being comprised of nodes and links, which are then the objects being 

“transformed,” per the specification and the relevant claims. See id. at 2-3. WSOU’s Reply Brief 

ignores these points entirely and instead focuses on the red herring of “network resources.”1

 The 

specification of the ’627 Patent describes what a network topology is and how it is “transformed,” 

and Huawei’s proposed construction corresponds directly to these descriptions. 

 

1

 Despite focusing on “network resources,” WSOU fails to describe what other “network 

resources” could be, nor does WSOU detail how Huawei’s proposed construction limits an openended view of “network resources.” 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 12 of 32
- 2 - 

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) 

Importantly, WSOU provided no rebuttal to the testimony of Dr. Lavian, who found, in 

sum, that a POSITA would not have found any of the corresponding structures proposed by WSOU 

for these means-plus-function terms for the ’627 Patent to be sufficient, or to be clearly linked to 

the claimed functions. See generally, Resp., Ex. 2, at ¶¶ 54-73. As such, Dr. Lavian’s expert 

testimony stands unrebutted. As WSOU failed to proffer the testimony of any rebuttal expert, 

WSOU can only argue that Dr. Lavian’s expert Declaration is “conclusory.” Reply at 2. However, 

the depth and breadth of Dr. Lavian’s 45-page Declaration and the well-reasoned opinions and 

conclusions regarding the indefiniteness of these means-plus-function terms evidences otherwise. 

With regard to WSOU’s Reply Brief, the claims at issue recite what the patent describes as 

general-purpose computers performing a special purpose function, Resp. at 6, n. 4, and WSOU’s 

Brief fails to rebut the corresponding (and absent) requirement of algorithmic support that would 

save these claims from indefiniteness. WSOU’s first citation to In re Beauregard is nonsensical, 

given that case simply affirmed the patentability of so-called “computer readable medium” claims, 

and did not address the separate requirement for supporting the corresponding structure of meansplus-function claims with an algorithm. See In re Beauregard, 53 F.3d 1583, 1584 (Fed. Cir. 

1995). WSOU’s citation to CLS Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, 1287 (Fed. 

Cir. 2013) likewise fails, given that case is directed to Section 101 patentability, and not Section 

112 structural support. Similarly, WSOU’s response to Net MoneyIn, Inc. v. VeriSign, Inc. ignores 

the fact that circular structural definitions that merely refer back to the preamble, such as those 

proposed by WSOU here, are “redundant and illogical,” and therefore fail to provide actual 

corresponding structure. See Net MoneyIn, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1366 (Fed. Cir. 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 13 of 32
- 3 - 

2008).2 And WSOU’s footnote regarding Williamson v. Citrix Online simply restates Huawei’s 

(correct) contention that “the specification must disclose an algorithm in addition to a general 

purpose computer.” Reply at 3 (emphasis in original). 

WSOU repeats its arguments regarding the Katz exception to the algorithm requirement 

(see Reply at 3), but ignores that this exception is “narrow,” and applies only when no special 

programming is required to perform the function. See Ergo Licensing, LLC v. CareFusion 303, 

Inc. 673 F.3d 1361, 1364-65 (Fed. Cir. 2012). WSOU’s new citations regarding the Katz exception 

are similarly unavailing. For example, Farstone Technology, Inc. v. Apple Inc., 2015 WL 857706, 

*7-*8 (C.D. Cal. 2015), found the term “selecting means” to be common input means such as “a 

keyboard and mouse” that did not require an algorithm, and Typhoon Touch Technologies, Inc. v. 

Dell, Inc., 659 F.3d 1376, 1384-86 (Fed. Cir. 2011), found that an algorithm for the term “means 

for cross-referencing” was required but was expressly described in a section of the specification 

entitled “cross-referencing.” Indeed, none of WSOU’s citations support the idea that a “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,” could be performed by an off-the-shelf 

general purpose computer. The corresponding structure for this means-plus-function claim term 

therefore requires algorithmic support.3

 

 

2

 While WSOU argues that there is inconsistency between Huawei’s treatment of the 

structure for the “second code means” and the “third code means” terms (see Reply at 3), this 

argument ignores the fundamental difference between the two limitations. The “second code 

means” invokes a general purpose computer that lacks algorithmic support in the specification, 

and is therefore indefinite, while the “third code means” invokes a general purpose computer that 

contains algorithmic support in the specification, and is therefore limited to that disclosed 

algorithm. Huawei thus has by no means “agree[d] to the corresponding structures” of the third 

code means as alleged by WSOU (see Reply at 3), as discussed in more detail below. 

3

 WSOU tacitly argues that the claim language itself provides the corresponding algorithm. 

See Reply at 3. However, it is black letter law that in means-plus-function claiming, the 

specification (and not the claims) must provide the corresponding structure. See, e.g., Williamson 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 14 of 32
- 4 - 

In response to this requirement, WSOU again cites to hundreds of lines from the 

specification of the ’627 Patent. See Reply at 4. However, while WSOU highlights the same 

example from its Opening Brief (from the ’627 Patent at 6:23-37), WSOU ignores that this 

example assumes that that those shared risk groups already exist and have been analyzed on the 

network topology, thus failing to disclose how the SRG determination and analysis would occur. 

WSOU does not respond to this fundamental defect in its Reply or specifically address any other 

part of the specification.4

 Moreover, WSOU’s one additional citation to the ’627 Patent at 6:63-

66 ignores the fact that these lines are from the subsequent topology transformation section (i.e., 

the next step in the claim) and not the “determination” step. Further, 6:63-66 likewise does not 

disclose how SRG determination will occur, and instead assumes such SRG determination has 

already occurred, with transformation applying to the already-determined SRGs. Given that there 

is no clear link to any structural component or algorithm in the specification of the ’627 Patent for 

performing the claimed functions, claims 29 and 30 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) 

In its Reply Brief, WSOU makes no attempt to explain how a function of “SRG (shared 

risk group) topology transformation” was well-known and able to be performed by a general 

purpose computer. WSOU instead points to its arguments from the previous section (Section 2), 

 

v. Citrix Online, LLC, 792 F.3d 1339, 1347 (Fed. Cir. 2015) (the scope of “means-plus-function” 

claims is limited “to only the structure, materials, or acts described in the specification as 

corresponding to the claimed function and equivalents thereof.”) (emphasis added). 

4

 While WSOU claims that Dr. Lavian’s testimony as “conclusory,” WSOU ignores that Dr. 

Lavian went through each and every passage cited by WSOU to demonstrate why they did not 

support this limitation, something WSOU failed to do in either of its Briefs. 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 15 of 32
- 5 - 

which involve claims with entirely different language. See Reply at 5. WSOU attempts to 

transplant these arguments onto one another without addressing the actual claim language, which 

only serves to highlight the impropriety of WSOU’s proposed construction for the present terms. 

In response to the requirement for an algorithm, WSOU again points to several columns 

from the specification, with no further explanation.5 WSOU has thus failed to demonstrate how 

this litany of citations from the specification of the ‘627 Patent is clearly linked to and 

accomplishes the claimed functions for these terms. Further, WSOU claims that Huawei has 

“changed [its] position and now appear[s] to agree with WSOU as to the corresponding structures 

of a processing platform-readable medium and a network management platform.” Reply at 5. This 

is false, as is clearly shown above in Huawei’s proposed construction. 

Specifically, Huawei’s proposed structure is 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.” (emphasis added). 

Thus, the “processing platform-readable medium” itself is not the corresponding structure, as 

alleged by WSOU. Rather, Huawei’s corresponding structure is the “processing platform-readable 

medium comprising the required algorithms disclosed in 6:49-7:52.” Huawei has never “agree[d] 

with WSOU” that the processing platform-readable medium, by itself, is the corresponding 

structure.6

 As such, Huawei’s proposed construction should be adopted. 

 

5

 Interestingly, WSOU faults Huawei for “conclusory” arguments in addressing the 200+ 

lines of the specification WSOU cited as the alleged supporting algorithmic structure. See Reply 

at 5. This ironic argument aside, WSOU has failed in both of its Briefs to expressly link any of 

the voluminous citations to the claimed functions or state with specificity what WSOU actually 

contends the algorithm to be. 

6

 Further, as discussed above, the processing platform-readable medium and network 

management platform cannot serve as the corresponding structure, given that these are general 

purpose computers performing special purpose functions, and thus the disclosure of an algorithm 

is required. Williamson, 792 F.3d at 1347. 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 16 of 32
- 6 - 

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) 

WSOU’s initial claim, that Huawei’s modification to its proposed construction is evidence 

that this disputed term should be afforded its plain and ordinary meaning (See Reply at 5), has a 

simple rebuttal – upon further review of its proposed claim terms and constructions, Huawei 

determined that the issue presented by the phrase “corrected errors” is best addressed in this term. 

WSOU’s second contention, that the claim language itself provides the definition for this claim 

term (see Reply at 5), is false. The claim language does not address the issues that need to be 

addressed by the Court – namely, the clarification of the term “corrected errors” and holding 

WSOU to statements made by the patent applicants during prosecution. See Resp. at 11. 

WSOU’s remaining complaints regarding the applicants’ statements concerning the 

Cooper reference are all misplaced. See Reply at 6. First, the words “different than” in Huawei’s 

proposed construction clarify that there are two different time periods – or, in other words, time 

periods that are separate and distinct from one another. In addition, and contrary to WSOU’s 

assertion, the applicants clearly and unambiguously distinguished Cooper as it only sampled data 

during a single time period (i.e. window size), and did not disclose, in the applicants’ words, a 

“different time period” outside of the sample period. Resp., Ex. 1 at 6. The disavowal is thus 

clear. Only Huawei’s proposed construction follows the teachings in the specification and the 

disavowing statements from the prosecution history and, as such, it should be adopted by the Court. 

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

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

WSOU ignores Huawei’s responsive arguments and instead re-argues in its Reply Brief 

that the “telecommunication network management system” is the proper corresponding structure. 

See Reply at 7. However, as explained in Huawei’s Responsive Brief, the claim language itself 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 17 of 32
- 7 - 

precludes the possibility that the “telecommunication network management system” is the proper 

corresponding structure for these means-plus-function claim terms. See Resp. at 14-15. 

Specifically, the claims require that the “telecommunication network management system” must 

comprise the claimed “means for implementing.” See e.g., ’727 Patent, at claims 4 and 5 (claiming 

“[a] management system of a telecommunication network, comprising...” and “[a] 

telecommunication network having a management system . . . comprising....”) (emphasis added). 

WSOU spends the remainder of its Reply Brief again pointing to extensive blocks quotes 

of “exemplary algorithms” from the specification without any meaningful explanation as to which, 

if any, are allegedly linked to the claimed function. See Reply at 7 (“[t]o the extent an algorithm 

is required, exemplary algorithms disclosed in the specifications are recited at ’727 patent, 1:63-

2:21, 2:36-4:54, Figure 1, and equivalents thereof.”). However, as noted in Huawei’s Responsive 

Brief, if WSOU’s citations to Figure 1 and nearly three whole columns of the specification 

demonstrate structure clearly linked to this single claimed function, then the same structure would 

be clearly linked to all of the claimed functions in both claims 4 and 5. In reality, the only structure 

clearly linked to the claimed function is the algorithm of Figure 1, as proposed by Huawei. See 

Resp. at 16. As such, Huawei’s proposed construction for this term should be adopted. 

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

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

At the outset, it is important to note that WSOU provided no rebuttal to the testimony of 

Huawei’s expert, Dr. Sharma, who found, in sum, that a POSITA would not have found the 

corresponding structure proposed by WSOU for this term to be sufficient, or clearly linked to the 

claimed functions. See generally, Resp., Ex. 11, at ¶¶ 29-37. As such, Dr. Sharma’s expert 

testimony stands unrebutted. As WSOU failed to proffer the testimony of any rebuttal expert, 

WSOU can only argue that Dr. Sharma’s expert Declaration is “conclusory.” See e.g., Reply at 8-

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 18 of 32
- 8 - 

9 (“the Sharma Declaration’s testimony . . . is conclusory . . . and should not be given any weight.”). 

However, the scope and detail of Dr. Sharma’s Declaration and the well-reasoned opinions and 

conclusions regarding the indefiniteness of this means-plus-function term evidences otherwise. 

Additionally, WSOU failed to respond to Huawei’s arguments that the structure that 

WSOU identifies – the primitives obtained from the FEC function – relates to the other “obtaining” 

limitations of claims 4 and 5. See Resp. at 17-18. Moreover, WSOU provides no response to 

Huawei’s argument that “classifying” is a separate and specific function (see Resp. at 18), and 

nothing WSOU cites to relates to “classifying data.” See Reply at 8. Rather, WSOU argues in a 

conclusory fashion that the FEC necessarily performs the classification function because the 

primitives are the end result, yet WSOU cites to no evidence to support its position. See Reply at 

8 (“it is the Forward Error Correction function that performs the classifying thus making the 

primitives (the result of the classifying) available to be obtained.”). That WSOU has no support 

for its contention is not surprising since there is no disclosure anywhere in the specification as to 

how to classify blocks either as corrected or uncorrected through the Forward Error Correction 

function. See Resp., Ex. 11 at ¶¶ 32-34, 36-37. While it could, in theory, be possible for a FEC 

function to perform the step of classifying blocks as correct or uncorrected, as Dr. Sharma testified 

(and as WSOU failed to rebut), the fact is that there no disclosure in the specification to support 

that notion. See id. Without any clear link to any structural component or algorithm in the 

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

D. “means for calculating the Performance Monitoring function by implementing 

a correlation of the information regarding said correct and uncorrected 

blocks” (claims 4, 5) 

WSOU again ignores Huawei’s responsive arguments and instead re-argues that the 

“telecommunication management system” is the proper corresponding structure. See Reply at 9. 

However, as explained in Huawei’s Responsive Brief, the claim language itself makes clear that 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 19 of 32
- 9 - 

the “telecommunication management system” cannot be the proper corresponding structure for 

this means-plus-function limitation. See Resp. at 19. Specifically, the claims require that the 

“telecommunication network management system” must comprise the claimed “means for 

implementing.”7

 

 In addition, WSOU appears to argue that seemingly unidentified components of a 

telecommunication system could carry out this function because “telecommunication network 

management systems implementing Performance Monitoring systems” were allegedly known in 

the art. Reply at 9-10. This is false, and it conflicts with the explicit teachings of the specification. 

When discussing calculation of the PM function, the specification recites that the described 

calculations are inserted as hardware or software procedures “that are additional to the PM ones 

which are already generally provided and known to the man skilled in the art.” ’727 Patent, at 

4:39-43. Thus, the “means for calculating the Performance Monitoring function” is different from 

(i.e., additional to) already existing performance monitoring functions. As such, contrary to 

WSOU’s assertion, known performance monitoring functions cannot be the corresponding 

structure for the present mean-plus-function term. 

 WSOU’s repeated citations to extensive block quotes of “exemplary algorithms” are 

improper as WSOU provides no clear explanation as to which, if any, are allegedly clearly linked 

to the claimed function.8

 However, as Huawei noted in its Responsive Brief, if it is true that 

WSOU’s citations to Figure 1 and nearly three columns of the specification demonstrate structure 

 

7

 See e.g., ’727 Patent, at claims 4 and 5 (claiming “[a] management system of a 

telecommunication network, comprising...” and “[a] telecommunication network having a 

management system . . . comprising....”) (emphasis added). 

8

 See Reply at 10 (“[t]o the extent an algorithm is required, exemplary algorithms disclosed 

in the specifications are recited at ’727 patent, 1:63-2:21, 2:36-4:54, Figure 1, and equivalents 

thereof.”) (emphasis added). 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 20 of 32
- 10 - 

clearly linked to the above function, then the same structure would be clearly linked to all of the 

claimed functions in both claims 4 and 5. Indeed, WSOU has identified the exact same

“algorithms” for this term that it did for the “means for implementing” term in Section B, above. 

While it is possible for the same structure to perform multiple functions, (see Reply at 10) it is 

improper for WSOU to cite to what is essentially the entire specification for each and every 

claimed function and argue that the same blanket citation is “clearly linked” to each function.9 

Finally, as admitted by WSOU, Figure 1 only shows the calculation of BCE and SCS, and does 

not disclose the structure of calculating the PM function by implementing a correlation. See

Reply at 10. The only structure clearly linked to the claimed function is the algorithm identified 

by Huawei. See Resp. at 20. As such, Huawei’s construction for this term should be adopted. 

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

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

“classifying said blocks either as corrected or uncorrected through the 

Forward Error Correction function” (claims 6 and 7) 

WSOU largely repeats the same arguments it made in its Opening Brief in its Reply. As 

Huawei explained in its Responsive Brief, 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 Resp. at 21-22. Here, and unlike the cases cited by WSOU, 

the claims at issue are too generalized and recite purely functional language. Indeed, other than 

the format of the preamble, claims 6 and 7 are identical to claims 4 and 5 of the ’727 Patent. See

id. at 22 (noting that there is no additional information, detail, or structure identified in the claim 

 

9

 See Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999) 

(holding that “corresponding structure” must not include structures beyond those necessary to 

perform the claimed function). 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 21 of 32
- 11 - 

limitations themselves) This fact distinguishes the claims at issue here from those at issue in the 

cases cited by WSOU. 

For instance, in Virginia Innovation Sciences, the claim at issue “recit[ed] substantial detail 

regarding instructions included in the program code.” Virginia Innovaction Sciences, Inc. v. 

Amazon.com, Inc., 2019 WL 4259020 at *31 (E.D. Tex. September 9, 2019). This fact stands in 

stark contrast to the claims at issue here, which only define the “program code” by the function it 

performs. The present claims are more akin to those in Global Equity Mgmt. (SA) Ptd. Ltd. v. 

Expedia, Inc., No. 2:16-cv-95, 2016 WL 7416132, at *27-29 (E.D. Tex. Dec. 22, 2016), where the 

term “program code” was found to be subject to 35 U.S.C. § 112, ¶ 6 because it was “defined only 

by the function that it performs,” and “[h]ow the code interacts with other code or structure of the 

claimed invention is not described.” As such, the Court should find that the present terms are 

subject to § 112, ¶ 6. 

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) 

 In its Reply Brief, WSOU does not respond to Huawei’s responsive arguments regarding 

the clear teachings of the specification as to the scope of the alleged invention and the ’755 Patent’s 

characterization of the “present invention.” See Resp. at 23-24. Instead, WSOU re-hashes the 

same generic arguments it made in its Opening Brief regarding Huawei’s proposed construction 

allegedly importing limitations into the claim language. See Reply at 12-13. 

Tellingly, while WSOU repeatedly argues that the ’755 Patent’s use of the phrase “existing 

MPLS Fast Re-routing techniques” means that Huawei’s proposed construction should be rejected, 

WSOU fails to identify any embodiment from the specification that would be omitted by Huawei’s 

proposed construction and the intrinsically-supported clarification therein distinguishing between 

source and originating network devices. Indeed, it is clear from the teachings of the specification 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 22 of 32
- 12 - 

that resolving problems involving MPLS Fast Re-routing is precisely what the alleged invention 

of the ’755 Patent is all about. See generally, ’755 Patent, at 1:15-49. 

WSOU also argues that Huawei’s proposed construction is improper because there is no 

requirement for “a primary LSP” anywhere in the claim language. See Reply at 13. This is 

illogical, as there must be a “primary LSP” in order for there to be an “alternate” path.10 Huawei’s 

proposed construction is the only construction that takes into account the distinction made by the 

patent applicant between a source network device and an originating network device, the definition 

of what is allegedly “the present invention,” and the proper scope of the alleged invention given 

the disclosures in the specification. As such, Huawei’s proposed construction should be adopted. 

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

WSOU’s Reply Brief focuses on the portion of Huawei’s construction clarifying that the 

claimed switch over message “is not a message that indicates a fault has occurred in the network.” 

Reply at 13-14. As shown in Huawei’s Responsive Brief, this portion of Huawei’s proposed 

construction comes directly from several unequivocal statements made by the patent applicant 

during prosecution in order to overcome numerous rejections from the Patent Office. Resp. at 26-

27. In response, WSOU argues that the statements made by the applicant amount to only an 

“ambiguous disavowal,” and thus should not impact claim construction. Reply at 14. 

 To support its argument, WSOU focuses on one sentence from a Request for 

Reconsideration to a Final Office Action. See id., citing Ex. 5 from Huawei’s Resp. Brief. 

However, WSOU misinterprets and misunderstands the applicant’s representation. Specifically, 

 

10 See, e.g., ’755 Patent, at 2:11-12 (“As shown in FIG. 1, a primary bi-directional LSP 100 

includes network devices 110, 120, 130, 140, 150, and 160”); 2:64-65 (“at step 260, whether the 

associated network device is a source network device of a primary LSP”); claim 1 (“re-route traffic 

traveling along a bi-directional LSP in a forward direction to an alternate path in the forward 

direction”) (emphasis added). If there is no primary LSP, then the term “alternate” has no meaning 

in the context of the claims. 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 23 of 32
- 13 - 

in the Request for Reconsideration, the applicant explained (again) why Carpini does not disclose 

a switch-over message, even though Carpini uses the terms “re-routing” and “divert” with respect 

to how a router may respond upon receiving a fault indication message. See Resp. at Ex. 5, 10-

11; see also Ex. A, attached hereto, at ¶¶ 0003, 0007, 0013, 0014 [Carpini (US2003/0063613)]. 

The applicant stated that even though Carpini uses these two terms, it “does not indicate that 

Carpini’s re-routing or diversion makes use of the claimed switch-over messages; in fact it does 

not.” Resp. at Ex. 5, 10-11 (emphasis added). 

The applicant further explained that Carpini works by “redirecting data traffic . . . onto the 

secondary path” in response to the fault indication, and that interpreting the disclosures of Carpini 

“as having the same or similar meaning as the claimed switch-over message is unreasonable.” See 

id. at 11. Put another way, even if Carpini’s re-routing or diversion functionality was equivalent 

to the claimed “switch-over message” in the ’755 Patent, Carpini is still distinguishable because it 

performs the “switch over” functionality as part of its response to the fault indication message, 

rather than (as claimed by the ’755 Patent) the “switch over message” itself. In distinguishing 

Carpini, the applicant drew a clear line between the claimed “switch over message,” and fault 

indication messages that result in the re-routing, diversion, or switching of traffic, as disclosed by 

Carpini. 

WSOU’s contention that Carpini’s fault indication message could possibly perform both 

fault indication and also be a switch over message (see Reply at 14), is nonsensical. First, WSOU’s 

argument directly conflicts with the applicant’s statements regarding Carpini’s redirection of 

traffic onto the secondary path in response to the fault indication message. See Resp., Ex. 5, at 11. 

Second, if Carpini’s fault indication message could perform both indicating a fault and re-routing 

and diverting data, then the fault indication message of Carpini would indeed be a switch over 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 24 of 32
- 14 - 

message. The end result of such a reading would be that Carpini cannot be distinguished from the 

claims of the ’755 Patent, and that the claims of the ’755 Patent are invalid.11 Only Huawei’s 

proposed construction for the term “switch over message” takes into account the express 

disclaimers made by the applicant during prosecution, and should thus be adopted. 

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

With regard to the present means-plus-function terms and those addressed in Sections D-F 

below, it is important at the outset to note that WSOU provided no rebuttal to the testimony of Dr. 

Lavian, who found, in sum, that a POSITA would not have found any of the corresponding 

structures proposed by WSOU for these means-plus-function terms for the ’755 Patent to be 

sufficient, or to be clearly linked to the claimed functions. See generally, Resp., Ex. 2, at ¶¶ 74-

132. As such, Dr. Lavian’s expert testimony stands unrebutted. 

With regard to the present terms, WSOU failed to respond to Huawei’s responsive 

arguments and instead re-argues in its Reply the nonsensical position that the “merging network 

device” is the proper corresponding structure. See Reply at 14-15. However, as explained in 

Huawei’s Responsive Brief, the claim language itself precludes the possibility that the “merging 

network device” is the proper corresponding structure for this means-plus-function claim term. 

See Resp. at 28-29. Specifically, the claims require that the “merging network device” must 

comprise the claimed “means for re-routing.” See, e.g., ’755 Patent, at claims 8 and 23 (claiming 

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

direction.”) (emphasis added). 

 

11 Disclaimer statements do not get any clearer or unambiguous, and these are precisely the 

type of statements that the public must be permitted to rely upon. See e.g., 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 the patentee’s statements during prosecution would lead a 

competitor to believe that the patentee had disavowed coverage of laptops”). 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 25 of 32
- 15 - 

 In its Reply, WSOU argues for the first time that “the specification teaches that a merging 

network device could be a control processing section, and the control processing section can also 

perform the recited functions.” Reply. at 15. WSOU further argues that the “control processing 

section may be hardware, software, firmware, or some combination.” Id. Whether or not the 

merging network device “could be a control processing section” does not alter the means-plusfunction analysis, as it does not matter what the merging network device “could be”; the claim 

language clearly requires the identification of structure within the merging network device itself

to perform the claimed functions. In addition, WSOU’s argument is nonsensical, as the 

specification states that the “control processing section” is a component of the merging network 

device, rather than actually being the merging network device. See ’755 Patent, at 3:17-18 (“a 

control processing section or the like of a merging network device.”) (emphasis added). 

Further, to the extent it is WSOU’s contention that the broad statement from the 

specification that the control processing section “may be implemented using hardware, software, 

firmware, or some combination of the three” (see ’755 Patent at 3:38-40), somehow saves this 

claim from indefiniteness, WSOU is again mistaken. Apart from the statement above, the 

specification provides no information or examples of any specific hardware components, software 

algorithms or firmware processing that can accomplish the claimed functions. At best, the 

specification provides a laundry list of potential structures, while not clearly linking any of them 

to the claimed functions.12 However, this type of generic identification does not legally qualify as 

“corresponding structure” for computer-implemented functions, because it amounts to nothing 

 

12 See e.g.,’755 Patent, at 3:47-53 (“The control processing section may be implemented on 

several platforms and may comprise one or more of the following: an MPLS module, routing 

manager, ReSerVation Protocol-Traffic Engineer (RSVP-TE) module, a link module, and 

connection manager operation to carry out the functions described throughout this description.”). 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 26 of 32
- 16 - 

more than an identification of “black box” structures that perform a recited function or, at best, a 

listing of general purpose devices or electrical components.13 These claims are therefore invalid. 

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) 

WSOU repeats its strategy from Section C (above) for this term in its Reply Brief, again 

declining to address Huawei’s arguments regarding the fact that the “originating network device” 

cannot serve as corresponding structure, because the claim language precludes the possibility of 

the “originating network device” being the corresponding structure because the claim language 

requires the identification of structure within the “originating network device” to perform the 

claimed function. See, e.g., 755 Patent, at claim 20 (claiming an “originating network device 

comprising . . . means for re-routing traffic . . . in a forward direction.”) (emphasis added). And 

again, WSOU’s contention that the “originating network device (network device 120) could be a 

control processing section, and the control processing section can perform the recited functions” 

(Reply at 16), is irrelevant, because it does not matter what the originating network device “could 

be.” And, as mentioned above, WSOU’s argument is nonsensical as the “control processing 

section” is a component of the network device. See ’755 Patent, at 2:35-39 (“a control processing 

section or the like of a network device.”) (emphasis added).14 For all the reasons set forth above, 

including the unrebutted testimony of Dr. Lavian, these claims are indefinite and invalid. 

 

13 See Blackboard Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1383-85 (Fed. Cir. 2009) 

(finding a means-plus-function term indefinite where the specification disclosures were 

“essentially a black box that performs a recited function,” because “how it does so is left 

undisclosed.”). 

14 As with the previous disputed term, WSOU’s reference to a “control processing section,” 

and argument that the control processing section “may be implemented using hardware, software, 

firmware, or some combination of the three,” fails to save this claim term from indefiniteness. As 

noted above, the generic identification of the “control processing section” and the corresponding 

list of potential “black box” structures is insufficient. See Blackboard Inc., 574 F.3d at 1383-85. 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 27 of 32
- 17 - 

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) 

Repeating its argument that Huawei has rebutted in Sections C and D above, WSOU again 

contends that the “originating network device (network device 120) could be a control processing 

section, and the control processing section can perform the recited functions.” Reply at 17-18. 

However, as explained more fully above, it is irrelevant what the originating network device 

“could be,” as the claim language clearly requires that the corresponding structure be within the 

originating network device itself. See e.g., ’755 Patent, at claim 20. As with the previous disputed 

terms, WSOU’s reference to a “control processing section” and the statement that the control 

processing section “may be implemented using hardware, software, firmware, or some 

combination of the three,” does not save these claims. See Blackboard Inc. 574 F.3d at 1383-85. 

For all the reasons set forth above, including the unrebutted testimony of Dr. Lavian, these claims 

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) 

Again, WSOU makes no attempt to respond to Huawei’s responsive arguments and instead 

simply re-argues its initial contention that the “merging network device” is the proper 

corresponding structure. See Reply at 18-19. However, as explained more fully in Section C 

above, WSOU’s argument that the “merging network device” constitutes sufficient corresponding 

structure is incorrect. For all the reasons set forth above, including the unrebutted testimony of 

Dr. Lavian, this claim is indefinite and therefore invalid.

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 28 of 32
- 18 - 

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

A. “determining whether said collected BER values worsen over time” (claims 1, 

11) 

 WSOU’s attempts to rebut Huawei’s arguments that the patent applicant clearly disavowed 

the full scope of the current term during prosecution by specifying that “determining” is an 

“affirmative” step by comparing collected BER values, instead of merely being indicated 

by/inferred from BER deterioration (see Resp. at 36-38), all fail, as set forth below. 

First, WSOU asserts that the applicant disagreed with the PTO examiner’s reading of 

Vieregge, and so a clear disavowal cannot be found. See Reply at 20. While the applicant did 

disagree with the examiner, claiming that “[t]he cited portion of Vieregge does not support the 

Examiner’s conclusion that Vieregge discloses” the claim elements, such a statement does not 

make applicant’s disavowal “ambiguous.” See Resp., Ex. 9 at 16. As even WSOU cannot deny, 

if the applicant had agreed with the examiner’s conclusion in the appeal brief, the claims of the 

’112 Patent would never have been allowed. By WSOU’s logic, unless a patent applicant agrees 

with an examiner’s rejection that the claims at issue are unpatentable, no disavowal can attach. 

WSOU’s contention is illogical and contrary to the law. 

 Second, contrary to WSOU’s interpretation, the applicant actually rebutted two

embodiments of Vieregge during prosecution, the first where a switch will be triggered when two 

BER thresholds are crossed in a short enough period of time, and the second where a switch will 

be trigger when one latest BER exceeds a threshold IBr and a rate of increase between two 

consecutive measurements exceeds some value. See Resp. at 36; see also Resp., Ex. 9 (Appeal 

Brief), at 14-17. However, the examiner took the position that the BER deterioration in those 

embodiments can indicate/infer that the BER values have been determined to worsen over time, 

and so “otherwise why bother to switchover.” See Resp. at 36. 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 29 of 32
- 19 - 

After failing to overcome the examiner’s rejections during prosecution, the applicant filed 

an appeal brief, where the applicant (1) again rejected the examiner’s theory built on 

indication/inference from BER deterioration, (2) explicitly indicated that the current term is 

associated with the specification disclosures at 5:34-46 with respect to determining whether the 

collected BER values worsen over time by comparing them, and (3) specified how to compare in 

view of Fig. 3 (comparing at step 318, then determining at step 320) as currently construed by 

Huawei. See id. at 36-38. After the appeal, and in light of applicant’s arguments, the ’112 Patent 

was allowed. Despite this fact, WSOU argues now that Huawei’s citations are only exemplary 

embodiments. See Reply at 20. However, without filing an appeal brief to further clarify that the 

“determining” as claimed is an “affirmative” step by comparing BER values as opposed to a 

passive indication/inference from BER deterioration, the ’112 Patent would not have issued. 

Moreover, WSOU fails to cite any embodiment that is in conflict with or in addition to the 

“determining” by comparing as construed by Huawei.15 

 Finally, WSOU fails to respond to Huawei’s answer to the question of “how comparing 

merely one recent value can show ‘worsen over time,’” in view of 5:40-42. See Resp. at 39. To 

be clear, Huawei’s proposal has specified that one or more recent values can be compared with

other collected BER values. Therefore, the one recent value does not compare with itself. 

WSOU’s argument is illogical and should be disregarded, and Huawei’s proposed construction 

should be adopted by the Court. 

 

 

15 Additionally, WSOU asserts that the phrase “the recent ones of said collected BER values” 

in Huawei’s proposal is not reflected in the current term but in prior claim elements. See id. at 20. 

However, this phrase is included in Huawei’s proposed construction based on applicant’s 

disavowal regarding how to compare said collected BER, and so whether it has been recited by 

prior claim elements is irrelevant 

Case 6:20-cv-00533-ADA Document 50 Filed 04/02/21 Page 30 of 32
- 20 - 

Dated: April 2, 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 50 Filed 04/02/21 Page 31 of 32
- 21 - 

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 50 Filed 04/02/21 Page 32 of 32