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-537-ADA 

CIVIL ACTION No. 6:20-CV-539-ADA 

 

DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 1 of 20
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TABLE OF CONTENTS 

I. U.S. Patent No. 7,860,512 (“the ’512 Patent”) (Case No. 6:20-cv-00537) ........................ 1

A. “capacity” (claims 1-18, 21-24, 27) ................................................................................. 1

II. U.S. Patent No. 8,200,224 (“the ’224 Patent”) (Case No. 6:20-cv-00539) ........................ 6

A. “selecting a first candidate base station using said evaluation of said signal quality from 

said first measurement report” (claim 1) .................................................................................... 6

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

program is run on the base station” (claim 15) ......................................................................... 10

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 2 of 20
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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 

359 F.3d 1367 (Fed. Cir. 2004)..................................................................................................2 

Baran v. Medical Device Technologies, Inc., 

616 F.3d 1309 (Fed. Cir. 2010)..............................................................................................2, 4 

Collaborative Agreements, LLC v. Adobe Sys., Inc., 

2015 WL 2250391 (W.D. Tex. 2015) ......................................................................................11 

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

519 F.3d 1366 (Fed. Cir. 2008)..................................................................................................9 

Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 

412 F.3d 1291 (Fed. Cir. 2005)................................................................................................13 

Edwards Lifesciences LLC v. Cook Inc., 

582 F.3d 1322 (Fed. Cir. 2009)..............................................................................................1, 2 

Eliyahou Harari et al. v. Roger Le, et al., 

656 F.3d 1331 (Fed. Cir. 2011)............................................................................................7, 10

Function Media, LLC v. Google, Inc., 

708 F.3d (Fed. Cir. 2013).........................................................................................................12 

Hyperphrase Technologies, LLC v. Google, Inc., 

260 Fed.Appx. 274 (Fed. Cir. 2007) ..........................................................................................2 

Medtronic, Inc. v. Advanced Cardiovascular, 

248 F.3d 1303 (Fed. Cir. 2001)..........................................................................................12, 13 

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

194 F.3d 1250 (Fed. Cir. 1999)................................................................................................13 

Omega Engineering, Inc. v. Raytek Corp., 

334 F.3d 1314 (Fed. Cir. 2003)..............................................................................................8, 9 

Pavo Solutions LLC v Kingston Technology Company Inc, 

711 Fed.Appx. 1020 (Fed. Cir. 2017) ........................................................................................2 

Retractable Tech. v. Becton, Dickinson and Co., 

653 F.3d 1296 (Fed. Cir. 2011)..................................................................................................1 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 3 of 20
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Seachange Int’l, Inc. v. C-Cor, Inc., 

413, F.3d 1361, 1373 (Fed. Cir. 2005).....................................................................................10 

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

2018 WL 4585279 ...................................................................................................................11 

Springs Window Fashions LP v. Novo Industries, L.P., 

323 F.3d 989 (Fed. Cir. 2003)..................................................................................................10 

VR Optics, LLC v. Peloton Interactive, Inc., 

345 F.Supp.3d 394 (S.D.N.Y Nov. 5, 2018) ..............................................................................2 

Wapp Tech Limited Partnership v. Seattle Spinco, Inc., 

2020 WL 1983087 (E.D. Tex. April. 27, 2020) .....................................................................2, 3 

Williamson v. Citrix Online, LLC, 

792 F.3d (Fed. Cir. 2015).........................................................................................................12 

WMS Gaming Inc. v. Int’l Game Tech., 

184 F.3d 1339 (Fed. Cir. 1999)................................................................................................13 

Zeroclick, LLC v. Apple Inc., 

891 F.3d 1003 (Fed. Cir. 2018)................................................................................................11 

Statutes 

35 U.S.C. § 112, ¶ 6 .....................................................................................................10, 11, 12, 13 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 4 of 20
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TABLE OF EXHIBITS 

Exhibit Description 

Ex. 1 Appl. Ser. No. 12/648,055, 10/24/2011 Office Action 

Ex. 2 Appl. Ser. No. 12/648,055, 01/17/2012 Amendment A 

Ex. 3 Appl. Ser. No. 12/648,055, 02/08/2012 Notice of Allowance 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 5 of 20
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Pursuant to the deadline set forth in the Scheduling Order (Dkt. 34), and the guidelines 

regarding claim construction set forth in the Order Governing Proceedings in Patent Cases 

(“OGP”) (Version 3.2), Defendants Huawei Technologies USA Inc., et al., (collectively, 

“Huawei”) respectfully submit this Responsive Claim Construction Brief to Plaintiff’s 

(“WSOU’s”) Opening Claim Construction Brief (“Opening Brief”) (Dkt. 43).1 

I. U.S. Patent No. 7,860,512 (“the ’512 Patent”) (Case No. 6:20-cv-00537) 

A. “capacity” (claims 1-18, 21-24, 27) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“load” Plain and ordinary meaning 

 The parties’ dispute centers on whether “capacity” in the phrases “radio capacity” and 

“transport capacity” can be construed as “load” where the term “load” itself has been recited in the 

claim language. Huawei’s proposed construction should be adopted because the patent applicants 

acted as their own lexicographers by repeatedly equating “capacity” to “load” throughout the entire 

’512 Patent. Therefore, “capacity” and “load” in the context of claims 1-18, 21-24, 27 are directed 

to the same subject matter. See Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1330 (Fed. 

Cir. 2009) (holding that different terms or phrases can be construed to cover the same subject 

matter when the intrinsic evidence indicates that such a reading of the terms or phrases is proper). 

i. The Specification Repeatedly Equates “Capacity” to “Load” 

 “Any presumption created by the doctrine of claim differentiation will be overcome by a 

contrary construction dictated by the written description or prosecution history.” Retractable 

Tech. v. Becton, Dickinson and Co., 653 F.3d 1296, 1305 (Fed. Cir. 2011) (internal quotation and 

 

1

 This Brief addresses the disputed claim terms (that the parties were collectively permitted 

to present to the Court for resolution pursuant to the OGP (Version 3.2)) for Case Nos. 6:20-cv00537 and -00539. 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 6 of 20
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citation omitted); see also Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367, 1373 (Fed. 

Cir. 2004) (“[I]t is not unknown for different words to be used to express similar concepts, even though 

it may be poor drafting practice”); Edwards Lifesciences LLC, 582 F.3d at 1330-31 (finding that the 

words “graft” and “intraluminal graft” have the same meaning); Baran v. Medical Device 

Technologies, Inc., 616 F.3d 1309, 1316 (Fed. Cir. 2010) (finding that the terms “detachable” and 

“releasably” in the same claim have the same meaning); Hyperphrase Technologies, LLC v. Google, 

Inc., 260 Fed.Appx. 274, 277 (Fed. Cir. 2007) (finding that “data reference,” “record reference,” 

“specifying reference,” and “reference” have the same meaning); Pavo Solutions LLC v Kingston 

Technology Company Inc, 711 Fed.Appx. 1020, 1028 (Fed. Cir. 2017) (finding that “formed on” and 

“on” have the same meaning); Wapp Tech Limited Partnership v. Seattle Spinco, Inc., 2020 WL 

1983087, at *10-13 (E.D. Tex. April. 27, 2020) (finding that the terms “simulate” and “emulate” in the 

same claim or in different claims have the same meaning); VR Optics, LLC v. Peloton Interactive, Inc., 

345 F.Supp.3d 394, 401 (S.D.N.Y Nov. 5, 2018) (finding that “drive” in an independent claim can 

have the same meaning with “control” in dependent claims and another independent claims and both 

are used to describe the same function). Here, the specification repeatedly equates “capacity” to 

“load.” For example, the specification explicitly recites “[t]he radio capacity information can be 

indicated as the cell load of the radio cell” and “[t]he transport capacity can be indicated as the 

transport load.” ’512 Patent, 8:30-31 and 56-57 and 10:58-61 (emphasis added). Therefore, 

“radio capacity” as claimed should mean “radio load,” and “transport capacity” as claimed should 

mean “transport load.” 

 Indeed, the crux of the alleged invention of the ’512 Patent is to “make[] it possible for the 

radio system to take the transport load situation into account when managing the radio resources 

of the radio system, e.g. when performing handovers” in order to “enables load to be balanced 

between radio cells, thus making it possible to avoid congestion in advance.” Id., 4:47-50 and 58-

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 7 of 20
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60. Figure 3 from the ’512 Patent illustrates a network configuration, in which the transport 

resource management unit 300 and the radio resource management unit 301 work together to adjust 

loads among radio cells provided by BTS (base stations) 326, 328. Id., 8:25-9:10. 

In particular, “[t]he transport resource management unit 300 is configured to receive 

transport load information on the transport network 322 available to the radio cells.” Id., 8:41-

43 (emphasis added). “[T]he transport resource management unit 300 could be any entity 

configured to measure the transport load of the transport network 322.” Id., 8:51-53 (emphasis 

added). Next, it can determine and provide a traffic capacity limit to each BTS 326 and 328 for 

them to adjust “cell load” to “reflect the transport load of the transport network,” especially 

“[w]hen high transport load is detected in the connection 313, 314, 315, 317 or 318.” Id., 8:59-

60, 9:4-10, and 9:43-44 (emphasis added). On the other hand, “[t]he radio resource management 

unit 301 receives information through a connection 312 about radio capacity of the BTS 326 and 

the BTS 328, reflecting the load of air interface, e.g. radio connections 307, 306 and 308.” Id., 

9:39-42 (emphasis added). Benefited from the communications between the transport resource 

management unit 300 and BTS 326 and 328, “[t]he radio resource management unit 301 can now 

take the transport load of the transport network into account in autotuning” in order to “balance 

load between cells.” Id., 9:20-23 (emphasis added). Accordingly, it is apparent that “capacity,” 

either in the phrase “radio capacity” or “transport capacity” as claimed, means “load” in view of 

the specification. 

ii. The Doctrine of Claim Differentiation as between Claims 1 and 32 is 

Not Applicable 

WSOU asserts that a comparison of claims 1 and 3 shows that “capacity” and “load” cannot 

 

2

 WSOU made a similar claim differentiation argument as between claims 11 and 13. See

Opening Brief, at 3. The same counter-arguments apply. 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 8 of 20
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be interpreted as “load.” See Opening Brief, at 2-3. The use of different words implies they have 

different meaning, but “that implication is overcome where . . . the evidence indicates that the 

patentee used the two terms interchangeably.” Baran, 616 F.3d at 1316. Here, in both claims 1 

and 3, “capacity” means “load” in view of the intrinsic evidence as discussed above. Huawei’s 

proposed construction would not trigger any application of the doctrine of claim differentiation. 

For example, claim 3 further limits claim 1 by indicating four specific examples of “radio capacity 

information,” including: (1) a current cell load and a maximum radio capacity of the radio cell; 

(2) the current cell load and available radio capacity of the radio cell; (3) a transport load of the 

transport network; and (4) the transport load of a connection from one base station of the radio 

network to another base station of the radio network. See ’512 Patent, claim 3 (emphasis added). 

After applying Huawei’s construction, “radio load information” as required by claim 1 is not equal 

to any of the four examples as recited by claim 3 as shown below. 

3. The method of claim 1, wherein the radio load information indicates at least one 

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

load and available radio load of the radio cell, a transport load of the transport 

network, the transport load of a connection from one base station of the radio 

network to another base station of the radio network. 

Further, WSOU’s argument simply ignores the fact that claim 1 requires “radio capacity 

information” (a more high-level collective term), not “radio capacity”3

 only. The features recited 

in claim 3 are specific examples of “radio capacity information,” for example, the information

could be “a current cell load and a maximum radio capacity of the radio cell” or “the current cell 

load and available radio capacity of the radio cell.” See id. Moreover, solely using “capacity” in 

claim 1 cannot justify claim differentiation between claims 1 and 3 because “capacity” is also 

recited by claim 3. 

 

3

 Even if claim 1 requires “radio capacity” only, after applying Huawei’s construction, 

“radio load” is still not the same as any of the examples as indicated in claim 3. 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 9 of 20
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iii. The Doctrine of Claim Differentiation within Claim 3 is Also Not 

Applicable 

As to claim differentiation within claim 3, WSOU errs in asserting that both “capacity” and 

“load” being used in the examples (1) and (2) above indicate that those two words have different 

meanings. See Opening Brief, at 3. The term “current cell load” is different from “maximum 

radio capacity of the radio cell,” even though they are arranged in the same example (1) by claim 

3. The specification makes it clear that the example (1) is actually “expressing information on the 

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

percentage of the maximum capacity.” ’512 Patent, 10:9-11 (emphasis added). Therefore, 

“maximum radio capacity of the radio cell” serves as a denominator to calculate the “current cell 

load” status and so means “maximum radio load of the radio cell.” As such, if “capacity” in 

“maximum radio capacity of the radio cell” does not mean “load,” the “current cell load” status 

cannot be computed. 

Similarly, in the example (2), “available radio capacity of the radio cell” also serves as a 

denominator to calculate the “current cell load” status and so means “available radio load of the 

radio cell.” By taking one sentence out of context, WSOU erroneously concludes that “‘radio 

capacity information’ includes a parameter that reflects ‘available radio capacity,’ though not 

necessarily the current load.” Opening Brief, at 3 (emphasis in original). Yet the whole paragraph 

as listed below suggests that the example (2) also relates to a cell load calculation/indication, and 

should follow the same equation as used by the example (1). 

The radio capacity information signalled from the BTS to the radio resource 

management unit can be indicated as the cell load of the radio cell. Typically it 

comprises parameters expressing information on the maximum available capacity 

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

the maximum capacity. Alternatively, the radio capacity information may 

comprise a parameter reflecting the available radio capacity. 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 10 of 20
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’512 Patent, 10:6-13 (emphasis added). Accordingly, “capacity” used in the examples (1) and (2) 

as recited by claim 3 also means “load” as properly construed by Huawei. Based on the foregoing, 

“capacity” in the phrases “radio capacity” and “transport capacity” should be construed as “load” 

in view of the claim language and technical solutions as disclosed in the specification. 

II. U.S. Patent No. 8,200,224 (“the ’224 Patent”) (Case No. 6:20-cv-00539) 

The ’224 Patent relates to a handover method in a base station of a mobile communication 

system. See ’224 Patent, 1:8-10. The method involves “initiating a first handover preparation by 

transmitting a first request” to one “first candidate base station,” and if the first handover 

preparation fails, “selecting a set of candidate base stations” and “initiating a second handover 

preparation by transmitting a second handover request to a plurality of” candidate base stations. 

Id. at claim 1. Such a method “allows a rapid switching to an alternative base station in case that 

any stage of the handover of the user equipment fails.” Id., 2:27-29. Moreover, by “initiating a 

multiple handover preparation triggered by an admission failure in the target base station, the base 

station ensures finding the best possible candidate.” Id., 2:30-36. 

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

quality from said first measurement report” (claim 1) 

Huawei’s Proposed Construction WSOU’s Proposed Construction 

“selecting a single candidate base station 

using said evaluation of said signal quality 

from said first measurement report” 

Plain and ordinary meaning 

 WSOU is correct that the parties’ dispute regarding this construction is whether or not the 

use of the phrase “a first candidate base station” should be construed to mean “a single candidate 

base station.” See Opening Brief, at 4. Contrary to WSOU’s assertion, however, the claims and 

specification of the ’224 Patent dictate that the indefinite article “a” in the phrase “a first candidate 

base station,” should be construed to mean “a single,” as opposed to the general construction of 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 11 of 20
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“one or more.” See id.; see also Eliyahou Harari et al. v. Roger Le, et al., 656 F.3d 1331, 1341 

(Fed. Cir. 2011) (“When the claim language and specification indicate that ‘a’ means one and only 

one, it is appropriate to construe it as such even in the context of an open-ended ‘comprising’ 

claim.”). 

The claims of the ’224 Patent support construing “a” to mean one and only one. See, e.g., 

’224 Patent, claim 1 (requiring the step of “selecting a first candidate base station,” and then the 

step of “initiating a first handover request to . . . said first candidate base station.”); claim 2 (“[t]he 

method of claim 1, wherein said first handover preparation has failed, if a failure message is 

received from said first candidate base station . . . .”). As shown above, the phrase “a first candidate 

base station” is used in the singular, rather than the plural form in the claim language of both claims 

1 and 2. 

Additionally, the claim language indicates that the patentees knew how to claim both a 

single and multiple base stations where they intended to do so. See id., claim 1, (explaining that 

the first measurement report contains an evaluation of signal quality from at least one candidate 

base station of said plurality of base stations for a handover); see also 9:33-39 (explaining that the 

second measurement report contains a second evaluation of signal quality of at least one of said 

set of candidate base stations, and the plurality of candidate base stations for said second handover 

preparation includes at least one of said candidate base stations identified in said second 

measurement report). Thus, the claims require that a single base station is selected as a first 

candidate base station, a handover is initiated to the selected base station, and if that handover 

fails, then the base station sends plural handover preparations to plural base stations. 

The specification of the ’224 Patent further supports construing “a first candidate base 

station” as “a single candidate base station.” See id., 4:18-22 (“In a second step 102, a first 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 12 of 20
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candidate base station is selected using the evaluation of the signal quality from the first 

measurement report. The evaluation may indicate that the first candidate base station has the 

highest signal strength for the user equipment.”) (emphasis added); see also 5:4-8 (“In a first 

instance, the source base station 202 transmits a first handover request to a first candidate base 

station 205. The candidate base station 205 may correspond to the candidate base station from the 

list that has the strongest signal for the user equipment 201.”) (emphasis added); 2:37-39 (“the 

first handover preparation has failed if a failure message is received from the first candidate base 

station”). 

Each and every reference in the specification to “the first candidate base station” relates to 

the selection of a single candidate base station – there is no disclosure in the ’224 Patent that “the 

first candidate base station” could be more than one base station. See, e.g., Abstract (“selecting a

first candidate base station . . . initiating a first handover preparation by transmitting a first request 

to the first candidate base station”) (emphasis added); see also 1:64-67 (“selecting a first candidate 

base station . . . and initiating a first handover preparation by transmitting a first request to the first 

candidate base station”) (emphasis added). It is only after the failed handover request to the first 

base station that the specification suggests that more than one base station can be employed. See 

id., 4:21-35 (explaining that should the first handover request fail a “set of candidate base stations” 

can be selected and a second handover attempted). 

In addition, the prosecution history supports Huawei’s argument that the first handover 

preparation sent to the “first candidate base station” should be limited to a handover preparation 

sent to a “single” candidate base station. Prosecution disclaimer attaches to a term “where the 

patentee has unequivocally disavowed a certain meaning to obtain his patent.” Omega 

Engineering, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003). The doctrine narrows 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 13 of 20
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the meaning of the claim congruent with the scope of the surrender. See id. In this case, the 

prosecution history disclaimer arose with respect to the Kim prior art reference (U.S. Patent No. 

7,818,006). See Ex. 1, “Appl. Ser. No. 12/648,055, 10/24/2011 Office Action,” at 2. Just like the 

’224 Patent, Kim pertains to handover methods in base stations. Id., at 4. The patent examiner 

noted during an office action rejection that Figure 6 of Kim disclosed handover processes in 

selected base stations, and that if the first handover preparation failed, there would be a second 

handover preparation to a base station selected from a set of candidate base stations. Id.

Even though Kim was raised by the examiner with regards to the “second handover” aspect 

of then pending claim 1, the patent applicants’ statements go further. Specifically, in order to 

overcome the examiner’s rejection of what would eventually issue as claim 1 in view of Kim, the 

patent applicants discussed Figure 6 of Kim and the examiner’s claim that it described a second 

handover preparation. See Ex. 2, “Appl. Ser. No. 12/648,055, 01/17/2012 Amendment A,” at 8 . 

In distinguishing Kim, the applicants represented that “the subject matter of claim 1 attempts an 

initial handover preparation to a single selected target base station when a determination is made 

that a handover is needed, assuming it will be successful, and sends plural handover preparation 

messages to plural candidate base stations if the initial handover preparation attempt fails.” Id. 

(emphasis added). 

Following these representations, the pending claims of the ’224 patent were allowed. See

Ex. 3, “Appl. Ser. No. 12/648,055, 02/08/2012 Notice of Allowance”. As such, in view of the 

repeated and unequivocal statements reproduced above, the patent applicants disavowed any claim 

construction (such as the present “plain and ordinary meaning”) where the “first candidate base 

station” could mean “more than one” base station. See Computer Docking Station Components, 

Inc. v. Dell, Inc., 519 F.3d 1366, 1379 (Fed. Cir. 2008) (finding disavowal of claim scope where 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 14 of 20
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“the sum of patentees’ statements during prosecution would lead a competitor to believe that the 

patentee had disavowed coverage of laptops”); Seachange Int’l, Inc. v. C-Cor, Inc., 413, F.3d 1361, 

1373 (Fed. Cir. 2005) (finding disclaimer where the applicant argued during prosecution that 

“illustrative” claim did not disclose features of prior art); Springs Window Fashions LP v. Novo 

Industries, L.P., 323 F.3d 989, 996 (Fed. Cir. 2003) (finding disclaimer where the applicant made 

consistent and repeated arguments distinguishing the prior art from the claimed invention).

As the plain language of the claims, the specification, and the patent applicants’ statements 

made during the prosecution history indicate that the indefinite article “a,” when used in the context 

of the term “a first candidate base station,” means “a single candidate base station,” rather than 

multiple candidate base stations, Huawei’s proposed construction, which correctly recognizes this 

fact, should be adopted. See Eliyahou Harari, 656 F.3d at 1341.4

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

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

Huawei’s Proposed Construction WSOU’s Proposed Construction 

Subject to 35 U.S.C. § 112, ¶ 6 

Function: causing a base station to perform 

the method of claim 1 when the program is 

run on the base station 

Structure: The flow chart of Figure 1, and its 

accompanying written description, and 

equivalents thereof 

Plain and ordinary meaning; and does not 

invoke 35 U.S.C. § 112, ¶ 6. If the Court 

finds the term invokes § 112, ¶ 6, however, 

then: 

Function: causing a base station to perform 

the method of claim 1. 

Structure: executable program code 

configured when executed to cause the base 

station to perform the method of claim 1; the 

example flowchart shown in Fig. 1 and its 

accompanying written description; example 

signaling described with reference to Figs. 2-

4; the example selecting process described 

with reference to Fig. 5; the base station 

 

4

 For these reasons there is no contradiction between construing the “first base station” and 

not the “first measurement report.” Opening Brief, at 4. There is no logical requirement in the 

claim that there must be a single measurement report, and the claim distinguishes between a “first 

measurement report” and “second measurement report.” 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 15 of 20
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described with reference to Fig. 6; and 

equivalents of any of the foregoing. 

The parties have a number of disputes regarding this claim limitation. As an initial matter, 

the parties dispute whether the term is a means-plus-function term and thus should be construed 

pursuant to 35 U.S.C. § 112, ¶ 6. If such is the case, which Huawei contends, the parties dispute 

the proper corresponding structure that is clearly linked to and accomplishes the claimed function. 

WSOU makes two primary arguments. First, WSOU argues that the generic computer 

language of “executable program” is by itself enough to recite sufficient structure. See Opening 

Brief at 5-6. Second, WSOU argues that the language of claim 15 – “causing a base station to 

perform the method when the program is run on the base station” – denotes sufficient structure 

because of its reference back to the method of claim 1. See id. Both of WSOU’s arguments are 

flawed. 

WSOU’s contention that “executable program” by itself denotes sufficient structure is 

undercut by the cases WSOU itself cites. Specifically, in none of the cases cited by WSOU did 

the claim terms WSOU identified include the word “means” in conjunction with the purportedly 

generic computer language. See e.g., Zeroclick, LLC v. Apple Inc., 891 F.3d 1003, 1005-06 (Fed. 

Cir. 2018) (showing no presence of the word “means” in the asserted claims containing the 

“program” and “interface code” limitations); Collaborative Agreements, LLC v. Adobe Sys., Inc., 

2015 WL 2250391, at *10 (W.D. Tex. 2015) (illustrating that the phrase “code segment” in 

asserted claim 25 does not contain the word “means”); SecurityProfiling, LLC v. Trend Micro 

America, Inc., 2018 WL 4585279, at *2 (noting that none of the disputed terms uses the word 

“means”); Syncpoint Imaging, LLC v. Nintendo of Am., Inc. ̧2016 WL 55118, at *22 (indicating 

that the words “means” does not appear in the claims with the limitations “instructions for 

detecting” or “instructions for processing). 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 16 of 20
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In addition, despite WSOU’s contentions to the contrary, claim 15, when read as a whole, 

claims an unknown algorithm or structure contained within the “executable program” that is 

capable of performing the method of claim 1. See Function Media, LLC v. Google, Inc., 708 F.3d, 

1310, 1318 (Fed. Cir. 2013) (holding that the specification must disclose an algorithm for 

performing the function in enough detail to explain how the function is performed). This kind of 

claim is the very definition of functional claiming – claiming based on what something does, rather 

than what something is. The presumption that a term is or is not means-plus-function focuses on 

whether or not the claim term contains the word “means,” not where that word exists within the 

claim. See Williamson v. Citrix Online, LLC, 792 F.3d, 1339, 1348 (Fed. Cir. 2015). It is WSOU’s 

burden to overcome the presumption that the term is governed by § 112, ¶ 6, and WSOU has failed 

to do so. 

As this claim term is clearly one thus must construed pursuant to § 112, ¶ 6, it is necessary 

to look to the specification of the ’224 Patent to determine what algorithm is clearly linked to and 

accomplishes the claimed function (i.e., “causing a base station to perform the method of claim 1 

when the program is run on the base station”). Here, the only algorithm disclosed in the 

specification capable of causing a base station to perform the claimed handover method is the 

algorithm of Figure 1. See ’224 Patent, 4:9-61 (describing FIG. 1 and the flowchart 100 of the 

claimed handover method). 

WSOU arguments regarding corresponding structure are legally incorrect, as WSOU 

identifies a number of “exemplary” structures that “encompass various embodiments” that may or 

may not be necessary. See Opening Brief, at 7. However, the proper analysis is to determine what 

structure is clearly linked to and accomplishes the function recited in the claim. See Medtronic, 

Inc. v. Advanced Cardiovascular, 248 F.3d 1303, 1311 (Fed. Cir. 2001). It is not, as WSOU 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 17 of 20
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insinuates, identifying structures that are optional or that may be capable of performing the 

claimed function. See id. To satisfy § 112, ¶ 6, the corresponding structure “must include all 

structure that actually performs the recited function.” Default Proof Credit Card Sys. v. Home 

Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir. 2005). Moreover, the “corresponding structure” 

must not include structures beyond those necessary to perform the claimed function. Micro Chem., 

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

As an example of the impropriety of WSOU’s proposed structure, WSOU contends that 

“the base station described with reference to Figure 6” is necessary structure. Opening Brief, at 7. 

Yet it is nonsensical that a physical embodiment of a base station could be “implemented in a 

computer program stored on a storage medium,” as required by claim 15. See e.g., ’224 Patent, 

10:58-59 (“The method of claim 1 implemented in a computer program product stored on a storage 

medium”). This example only serves to demonstrate that WSOU’s “exemplary” corresponding 

structures are anything but. 

Indeed, according to the claim language itself, this particular means-plus-function 

limitation is implemented by computer software. As such, the corresponding structure in the patent 

specification must include an algorithm for performing the function. See WMS Gaming Inc. v. 

Int’l Game Tech., 184 F.3d 1339, 1348 (Fed. Cir. 1999) (finding that when disclosed structure is 

a computer or microprocessor programmed to carry out an algorithm “the disclosed structure is 

not the general purpose computer, but rather the general purpose computer programmed to perform 

the disclosed algorithm”). Here, that algorithmic function is described pictorially with respect to 

Figure 1. As such, WSOU’s attempt to incorporate components such as “signaling hardware” and 

a “base station” are improper and should be rejected. Only Huawei’s proposed construction 

identifies the proper corresponding structure and, as such, should be adopted by the Court. 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 18 of 20
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Dated: March 5, 2021 Respectfully submitted, 

/s/ Jason W. Cook

Jason W. Cook 

Texas Bar No. 24028537 

Shaun W. Hassett 

Texas Bar No. 24074372 

McGuireWoods LLP 

2000 McKinney Avenue, Suite 1400 

Dallas, TX 75201 

Telephone: (214) 932-6400 

jcook@mcguirewoods.com 

shassett@mcguirewoods.com 

Tyler T. VanHoutan 

Texas Bar No. 24033290 

McGuireWoods LLP 

600 Travis St., Suite 7500 

Houston, TX 77002 

Telephone: (713) 571-9191 

tvanhoutan@mcguirewoods.com 

J. Mark Mann 

Texas Bar No. 12926150 

G. Blake Thompson 

Texas Bar No. 24042033 

MANN | TINDEL | THOMPSON 

300 West Main Street 

Henderson, Texas 75652 

Telephone: (903) 657-8540 

mark@themannfirm.com 

blake@themannfirm.com 

Counsel for Defendants Huawei Technologies 

Co., Ltd., Huawei Technologies USA, Inc., 

Huawei Device Co. Ltd. (f/k/a Huawei Device 

(Dongguan) Co.), Huawei Device (Shenzhen) Co., 

Ltd. (f/k/a Huawei Device Co. Ltd.) and Huawei 

Device USA

 

 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 19 of 20
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CERTIFICATE OF SERVICE 

I hereby certify that all counsel of record who are deemed to have consented to electronic 

service are being served with a copy of this document via the Court’s CM/ECF system. 

 /s/ Jason W. Cook . 

 Jason W. Cook

 

Case 6:20-cv-00537-ADA Document 45 Filed 03/05/21 Page 20 of 20