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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.

DELL TECHNOLOGIES INC.,

DELL INC., EMC CORPORATION,

AND VMWARE, INC.,

Defendants.

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CIVIL ACTION 6:20-CV-00474-ADA

CIVIL ACTION 6:20-CV-00475-ADA

CIVIL ACTION 6:20-CV-00476-ADA

CIVIL ACTION 6:20-CV-00479-ADA

PATENT CASE

JURY TRIAL DEMANDED

PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 1 of 29
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TABLE OF CONTENTS

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

A. Claim Construction Generally..............................................................................1

B. Indefiniteness..........................................................................................................2

II. U.S. Patent No. 7,212,536 (Case No. 6:20-cv-00474) Claim Terms ...............................2

A. Terms with Constructions Not Selected for Construction by 

Defendants..............................................................................................................2

B. Terms with Disputed Constructions.....................................................................3

1. “bridge” (Claims 1, 12)..............................................................................3

2. “channel in a connection-based network” (Claims 1, 12) ......................4

3. “a forwarding system configured to read a priority of a data 

frame to be forwarded onto the connection-based network by 

way of the first one of the ports, identify a service interface 

which the map indicates corresponds to the read user priority 

and forward the data frame over the channel in the 

connection-based network associated with the identified service 

interface.” (Claim 1) ..................................................................................4

4. “means for reading priorities of data frames directed by the 

bridge to at least a first one of the bridge ports” ....................................7

III. U.S. Patent No. 7,453,888 (Case No. 6:20-cv-00475) Claim Terms ...............................9

5. “stackable trunk port” (Claims 1, 8, 9, 10, 11, 12, 13, 15, 19, 20)..........9

6. “backbone VLAN trunk” (Claims 1, 5, 6, 7, 12, 15, 16, 17, 18, 

19, 20) ........................................................................................................10

7. “wherein the selection and association of at least one backbone 

VLAN ID with each one of the corresponding plurality of 

backbone VLAN trunks is undertaken irrespective of one of an 

in-use and a stand-by designation of each one of the plurality 

of backbone VLAN trunks and each one of the plurality of 

stackable trunk ports” (Claim 1) / “wherein the association of 

the plurality of backbone VLAN IDs with the backbone VLAN 

trunk is undertaken irrespective of one of an in-use and a 

stand-by designation of the backbone VLAN trunk and the at 

least one stackable trunk port” (Claim 15)............................................11

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 2 of 29
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IV. U.S. Patent No. 7,565,435 (Case No. 6:20-cv-00476) Claim Terms .............................13

8. “setting the IPPC of one of the ports of one of said bridges 

within the MSTI to a lower IPPC when said port is part of the 

VLAN member set” (Claims 1, 8, 13).....................................................13

9. “ideally” (Claims 7, 11, 18)......................................................................15

10. “processing unit for setting the Internal Port Path Cost (IPPC) 

of one of the ports of one of said bridges within the MSTI to a 

high IPPC when said port is not part of the VLAN member 

set” (Claim 8)............................................................................................15

11. “processing unit for setting the IPPC of one of the ports of one 

of said bridges within the MSTI to a lower IPPC when said 

port is part of the VLAN member set” (Claim 8) .................................17

12. Entirety of claims [9-11, 13-18]...............................................................18

V. U.S. Patent No. 8,402,129 (Case No. 6:20-cv-00479) Claim Terms .............................19

A. “rate of change” (claim 3) ...................................................................................19

B. “initiating a poll of resources in the nodes of the network by the 

management station in response to reporting from the node or a time 

interval being exceeded” (claim 3)......................................................................22

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 3 of 29
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TABLE OF AUTHORITIES

Cases

Azure Networks, LLC v. CSR PLC,

771 F.3d 1336 (Fed. Cir. 2014)................................................................................................... 1

CloudofChange, LLC v. NCR Corp.,

No. 6-19-CV-00513-ADA, 2020 WL 4004810 (W.D. Tex. July 15, 2020)..................... 1, 2, 20

Comark Commc’ns, Inc. v. Harris Corp.,

156 F.3d 1182 (Fed. Cir. 1998)................................................................................................... 1

Cybersettle, Inc. v. National Arbitration Forum, Inc.,

243 Fed. Appx. 603 (Fed. Cir. 2007)........................................................................................ 14

Hewlett-Packard Co. v. Bausch & Lomb, Inc.,

909 F.2d 1464, 15 USPQ2d 1525 (Fed. Cir. 1990) .................................................................. 13

In re Katz Interactive Call Processing Patent Litig.,

639 F.3d 1303 (Fed. Cir. 2011)................................................................................................. 18

Interactive Gift Express, Inc. v. Compuserve Inc.,

256 F.3d 1323 (Fed.Cir.2001)................................................................................................... 13

IPXL Holdings, L.L.C. v. Amazon.com, Inc.,

430 F.3d 1377 (Fed. Cir. 2005)................................................................................................. 18

MasterMine Software, Inc. v. Microsoft Corporation,

874 F.3d 1307 (Fed. Cir. 2017)................................................................................................. 18

Nautilus, Inc. v. Biosig Instruments, Inc.,

572 U.S. 898 (2014).................................................................................................................... 2

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005)................................................................................................... 1

Pisony v. Commando Construction, Inc.,

No. W-17-CV-00055-ADA, 2019 WL 928406 (W.D. Tex. Jan. 23, 2019) ............................. 22

Samsung Elecs. Am. v. Prisua Eng'g Corp.,

948 F.3d 1342 (Fed. Cir. 2020)....................................................................................... 5, 16, 18

Schumer v. Laboratory Computer Systems,

308 F.3d 1304 (Fed. Cir. 2002)................................................................................................. 18

Skky, Inc. v. MindGeek, s.a.r.l.,

859 F. 3d 1014 (Fed. Cir. 2017)............................................................................................ 5, 16

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 4 of 29
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Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,

844 F.3d 1370 (Fed. Cir. 2017)................................................................................................... 2

Tek Global v. Sealant Sys. Int'l, Inc.,

920 F.3d 777 (Fed. Cir. 2019)............................................................................................... 5, 16

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

669 F.3d 1362 (Fed. Cir. 2012)....................................................................................... 2, 20, 22

Toshiba Corp. v. Imation Corp.,

681 F.3d 1369 (Fed. Cir. 2012)................................................................................................. 10

UltimatePointer, L.L.C. v. Nintendo Co.,

816 F.3d 816 (Fed. Cir. 2016)................................................................................................... 18

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)................................................................................. 5, 15, 16, 17

Statutes

35 U.S.C. § 112........................................................................................................................... 2, 7

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 5 of 29
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Plaintiff WSOU Investments, LLC d/b/a Brazos License and Development (“WSOU”)

respectfully submits this claim construction brief in support of its proposed constructions. 

I. Legal Standards

A. Claim Construction Generally

The general rule is that claim terms are generally given their plain-and-ordinary meaning. 

Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc), cert. denied, 546 U.S. 

1170 (2006); Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated 

on other grounds by 135 S. Ct. 1846, 1846 (2015) (“There is a heavy presumption that claim terms 

carry their accustomed meaning in the relevant community at the relevant time.”). The plain and 

ordinary meaning of a term is the “meaning that the term would have to a person of ordinary skill 

in the art in question at the time of the invention.” Philips,415 F.3d at 1313. “‘Although the 

specification may aid the court in interpreting the meaning of disputed claim language, particular 

embodiments and examples appearing in the specification will not generally be read into the 

claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting 

Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)). Although 

extrinsic evidence can also be useful, it is ‘“less significant than the intrinsic record in determining 

the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, 

Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). 

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

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

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

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

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

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 6 of 29
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Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To act as his/her own lexicographer, the 

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

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

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

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

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

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

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

B. Indefiniteness

The Patent Act requires claims to particularly point out and distinctly claim the subject 

matter regarded as the inventions. 35 U.S.C. § 112, ¶ 2. To satisfy this requirement, the claim must 

be read in light of the intrinsic evidence to determine whether it informs one of skill in the art at 

the time of the invention “about the scope of the invention with reasonable certainty.” Nautilus, 

Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910-11 (2014). To establish that a claim is indefinite, 

a patent challenger must prove indefiniteness by clear and convincing evidence. Sonix Tech. Co. 

v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).

II. U.S. Patent No. 7,212,536 (Case No. 6:20-cv-00474) Claim Terms

A. Terms with Constructions Not Selected for Construction by Defendants

Term Construction 

means for determining a number of the service 

interfaces associated with active channels in 

the connection-based network

Function: determining a number of the service 

interfaces associated with active channels in 

the connection-based network

Structure: bridge, and equivalents thereof; see 

e.g., 2:26-34, 4:46-5:18, 5:19-27, 6:44-48, 

7:45-56, 7:57-8:20

means for establishing a mapping between Function: establishing a mapping between 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 7 of 29
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user priorities read by the means for reading 

priorities of data frames and the service 

interfaces associated with active channels in 

the connection-based network based at least in 

part on a number of the service interfaces 

associated with active channels in the 

connection-based network

user priorities read by the means for reading 

priorities of data frames and the service 

interfaces associated with active channels in 

the connection-based network based at least in 

part on a number of the service interfaces 

associated with active channels in the 

connection-based network

Structure: bridge, and equivalents thereof; see 

e.g., 5:28-6:14, 6:15-47, 6:49-7:34, 9:8-17, 

8:37-45, Figs. 4, 5A-I, 6.

means for assigning frames to the service 

interfaces based upon the user priorities and 

the mapping

Function: assigning frames to the service 

interfaces based upon the user priorities and 

the mapping

Structure: bridge, and equivalents thereof; see 

e.g., 6:15-25, 7:22-34, 7:57-8:21

B. Terms with Disputed Constructions

1. “bridge” (Claims 1, 12)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning “a network interface device that operates no 

higher than the data link layer”

This term should get its plain and ordinary meaning. Defendants’ proposed construction is 

vague and confusing. For example, the phrase “operates no higher than the data link layer” is 

without any context and does not appear anywhere in the specification. As a result, Defendants’ 

proposed construction is vague and unhelpful. The specification already provides that “[t]he 

invention relates to data communication networks which include bridges or similar data handling 

devices.” ’536 patent, 1:6-7. In illustrative embodiments, the specification also provides that 

“Bridge 16 receives packets from a connected LAN segment 12 at local interface 23 which is 

connected to a first bridge port 25. Bridge 16 may comprise additional bridge ports connected to 

additional local interfaces (not shown) which are associated with different LAN segments. Bridge 

16 also passes data received from other sources (such as other LAN segments) to LAN segment 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 8 of 29
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12 by way of bridge port 25.” Id., 4:26-33. Defendants’ proposed construction is confusing and 

unnecessary and should be rejected. 

2. “channel in a connection-based network” (Claims 1, 12)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning “one of the paths that has been established in a 

network for communications”

This term should get its plain and ordinary meaning. Defendants’ proposed construction is 

vague and confusing. For example, it is unclear if Defendant intends the phrase “one of the paths” 

to mean that there is required to be other “paths.” Moreover, the phrase “established in a network 

for communications” is also vague and confusing at least because it is further unclear if the other 

“paths” are required to be for something other than “communications.” The specification itself 

provides numerous illustrative examples of a channel in a connection-based network. See e.g. ’536 

patent, Fig. 1 (“FIG. 1 is a schematic diagram of a network having a number of ethernet segments 

connected by channels in a connection-based network”. Id., 3:5-7), Fig. 3 (“FIG. 3 illustrates a pair 

of segments of a VLAN interconnected by a plurality of channels through a connection-based 

network”. Id., 3:10-12). Defendants’ proposed construction is confusing and unnecessary and 

should be rejected. 

3. “a forwarding system configured to read a priority of a data frame to 

be forwarded onto the connection-based network by way of the first 

one of the ports, identify a service interface which the map indicates 

corresponds to the read user priority and forward the data frame 

over the channel in the connection-based network associated with the 

identified service interface.” (Claim 1)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: read a priority of a data frame to be 

forwarded onto the connection-based network 

by way of the first one of the ports, identify a 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 9 of 29
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service interface which the map indicates 

corresponds to the read user priority and 

forward the data frame over the channel in the 

connection-based network associated with the 

identified service interface

Structure: Indefinite

This term should be given its plain and ordinary meaning. Because this term does not 

contain the words “means for,” there is a rebuttable presumption that section 112, paragraph 6, 

does not apply to that limitation. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 

2015) (en banc). That presumption can be overcome, but only “if the challenger demonstrates that 

the claim term fails to ‘recite sufficiently definite structure’ or else recites ‘function without 

reciting sufficient structure for performing that function.’” Id. at 1349. The question whether the 

term “forwarding system” invokes section 112, paragraph 6, depends on whether persons skilled 

in the art would understand the claim language to refer to structure, assessed in light of the 

presumption that flows from the drafter’s choice not to employ the word “means.” Samsung Elecs. 

Am. v. Prisua Eng'g Corp., 948 F.3d 1342, 1354 (Fed. Cir. 2020). “To determine whether the claim 

limitation at issue connotes sufficiently definite structure to a person of ordinary skill in the art, 

[courts] look first to intrinsic evidence, and then, if necessary, to the extrinsic evidence.” Tek 

Global v. Sealant Sys. Int'l, Inc., 920 F.3d 777, 785 (Fed. Cir. 2019); see also Skky, Inc. v. 

MindGeek, s.a.r.l., 859 F. 3d 1014, 1019 (Fed. Cir. 2017) (‘To determine whether a claim recites 

sufficient structure, "it is sufficient if the claim term is used in common parlance or by persons of 

skill in the pertinent art to designate structure, even if the term covers a broad class of structures 

and even if the term identifies the structures by their function.”’). 

Here, a person of skill in the art would understand the claim language to refer to structure, 

where the specification provides certain exemplary embodiments, for example, in an “illustrated 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 10 of 29
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embodiment”: 

“Bridge 16 receives packets from a connected LAN segment 12 at 

local interface 23 which is connected to a first bridge port 25. Bridge 

16 may comprise additional bridge ports connected to additional 

local interfaces (not shown) which are associated with different 

LAN segments. Bridge 16 also passes data received from other 

sources (such as other LAN segments) to LAN segment 12 by way 

of bridge port 25. Bridge port 25 may implement a set of service 

queues which handle the forwarding of packets having different 

user priorities onto LAN segment 12.” ’536 patent, 4:26-35 

(emphasis added). 

The specification further provides: 

“Bridging system 27 maintains a mapping between user 

priorities and available channels 15 in cell relay network 14. In 

preferred embodiments, for each of bridge ports 26, a map is 

maintained. The map may comprise, for example, a lookup table 

accessible to the system which manages the port 26. The map 

associates each of the user priorities in whatever system of user 

priorities is being used with a channel 15 in connection-based 

network 14 which is accessible by way of one of the service 

interfaces 30 associated with the port 26. The map may map between 

user priorities and predetermined connection identifiers for the 

channels. For example, bridging system 27 may contain data which 

associates each of bridge ports 26 with a VPI and data which 

associates each of service interfaces 30 with a VCI, as described 

above. Equivalently, the map may map between user priorities 

and service interfaces 30.” Id., 5:40-55 (emphasis added). 

Finally, the specification provides: 

“Certain implementations of the invention comprise computer 

processors which execute software instructions which cause the 

processors to perform a method of the invention. For example, 

bridging system 27 may comprise a computer processor which 

executes software instructions which cause the processor to 

associate specific ones of ports 30 with specific channels on cell 

relay network 14. The invention may also be provided in the form of 

a program product. The program product may comprise any 

medium which carries a set of computer-readable signals 

comprising instructions which, when executed by a computer 

processor, cause the data processor to execute a method of the 

invention. The program product may be in any of a wide variety of 

forms. The program product may comprise, for example, physical 

media such as magnetic data storage media including floppy 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 11 of 29
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diskettes, hard disk drives, optical data storage media including CD 

ROMs, DVDs, electronic data storage media including ROMs, flash 

RAM, or the like or transmission-type media such as digital or 

analog communication links.” Id., 8:46-64 (emphasis added). 

As seen above, the specification provides various exemplary embodiments showing that 

the forwarding system may be a bridge with a bridge port and a bridging system, or a computer 

processor or a computer-readable medium comprising instructions for a processor (such as those 

found in Figure 6, see e.g., Id., 6:15-25). Accordingly, this term is not subject to 35 U.S.C. § 112

¶ 6, and Defendants’ proposal should be rejected. 

4. “means for reading priorities of data frames directed by the bridge to 

at least a first one of the bridge ports”

WSOU’s Proposed Construction Defendants’ Proposed Construction

Subject to 35 U.S.C. § 112, ¶ 6

Function: reading priorities of data frames 

directed by the bridge to at least a first one of 

the bridge ports

Structure: bridge, with bridging system and 

bridge port, and equivalents thereof 

Algorithm (if required): see e.g., ----, and 

equivalents thereof.

This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: reading priorities of data frames 

directed by the bridge to at least a first one of 

the bridge ports

Structure: Indefinite

The parties agree this term is subject to 35 U.S.C. § 112, ¶6. The parties also agree as to 

the recited function. However, the parties disagree as to the corresponding structure. The correct 

corresponding structure is “bridge with bridging system and bridge port, and equivalents 

thereof.” This is shown by the specification in exemplary embodiments. For example: 

“Bridge 16 receives packets from a connected LAN segment 12 at 

local interface 23 which is connected to a first bridge port 25. Bridge 

16 may comprise additional bridge ports connected to additional 

local interfaces (not shown) which are associated with different

LAN segments. Bridge 16 also passes data received from other 

sources (such as other LAN segments) to LAN segment 12 by way 

of bridge port 25. Bridge port 25 may implement a set of service 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 12 of 29
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queues which handle the forwarding of packets having different 

user priorities onto LAN segment 12. The service queues may be 

implemented, for example, according to the IEEE 802.1D and 

802.1Q specifications.” ’536 patent, 4:26-37 (emphasis added). 

As another example, the specification describes: 

“Bridging system 27 maintains a mapping between user 

priorities and available channels 15 in cell relay network 14. In 

preferred embodiments, for each of bridge ports 26, a map is 

maintained. The map may comprise, for example, a lookup table 

accessible to the system which manages the port 26. The map 

associates each of the user priorities in whatever system of user 

priorities is being used with a channel 15 in connection-based 

network 14 which is accessible by way of one of the service 

interfaces 30 associated with the port 26. The map may map between 

user priorities and predetermined connection identifiers for the 

channels. For example, bridging system 27 may contain data which 

associates each of bridge ports 26 with a VPI and data which 

associates each of service interfaces 30 with a VCI, as described 

above. Equivalently, the map may map between user priorities and 

service interfaces 30.” Id., 5:40-55 (emphasis added). 

Additionally, the specification provides: 

“FIG. 6 illustrates a method 100 according to the invention for 

forwarding a priority tagged data frame. A frame is received at block 

102. In blocks 104 and 106 the priority of the frame is determined 

and the frame is forwarded to a bridge port for delivery to a 

destination. Blocks 104 and 106 may occur in either order. In block 

108, the frame is assigned to a channel (or equivalently to a service 

interface associated with an available channel). Assigning the 

frame to a channel may comprise looking up the priority 

determined in block 104 in a map. Then in block 110 the frame

is forwarded on the channel.”

“he mapping used by bridging system 27 for a bridge port 26 will 

depend upon the number of channels 15 available to the bridge port 

26 (e.g. to a number of the service interfaces 30 which are connected 

to active channels in network 14). Since the number of available 

connections 15 may vary over time, a scheme comprising a plurality 

of mappings may be provided. As the number of available channels 

15 changes, different mappings are selected from the scheme. For 

example, where, for a particular bridge port 26 there is only a single 

channel 15 available, the mapping is trivial. All data which passes 

through that bridge port 26 must travel on the single available 

channel. As more channels 15 become available, the 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 13 of 29
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correspondence between user priorities and channels 15 can be 

remapped so that frames having different user-priorities can be 

sent over different channels 15. The mapping may be stored in 

a lookup table, the lookup table may be updated each time a 

channel is added or dropped.”

Id., 6:15-42 (emphasis added). 

Additionally, the specification recites that the invention may be implemented comprising 

computer processors executing software instructions, or with other components that perform the 

functions illustrated in the exemplary embodiments, including components which are not 

structurally equivalent to the structure disclosed in the specification. Id., 8:46-9:7. 

Accordingly, the corresponding structure is a bridge with bridging system and bridge port, 

and equivalents thereof. To the extent an algorithm is required, exemplary algorithms disclosed in 

the specification are recited at ’536 patent, 4:26-37, 5:40-55, 6:4-14, 6:15-42, 7:23-44, 8:21-28, 

Figs. 1, 2, 4, 5A-I, 6. For example, the specification teaches: “Bridge port 25 may implement a set 

of service queues which handle the forwarding of packets having different user priorities onto 

LAN segment 12.” Id., 4:33-35. In a further embodiment, a map of user priorities and available 

channels, such as a lookup table, is accessible to a bridging system that manages a bridge port. Id., 

5:41-55. In another embodiment, the specification teaches a frame is received, the priority of the 

frame is determined, and then the frame is forwarded to a bridge port for delivery. Id., 6:15-25. As 

yet another example, the specification teaches that a bridge may permit support for user priorities 

to be disabled, and in such an instance, all VLAN traffic may be carried over a single channel per 

port. Id., 7:41-44. 

III. U.S. Patent No. 7,453,888 (Case No. 6:20-cv-00475) Claim Terms

5. “stackable trunk port” (Claims 1, 8, 9, 10, 11, 12, 13, 15, 19, 20)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning “trunk port supporting the Riverstone solution 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 14 of 29
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(i.e. the additional extension 802.1Q packet 

header)”

This term should be given its plain and ordinary meaning. Defendants’ proposed 

construction should be rejected at least for improperly importing limitations from the specification. 

Toshiba Corp. v. Imation Corp., 681 F.3d 1369 (Fed. Cir. 2012) (“Absent disclaimer or 

lexicography, the plain meaning of the claim controls.”). Defendants’ proposed construction 

confusingly and improperly seeks to limit this term to a trunk port supporting “the Riverstone 

solution” and/or “the additional extension 802.1Q packet header” from exemplary embodiments 

in the specification. The claims and specification do not require the specific elements of 

Defendants’ construction. Instead, the specification describes a proposed change to an IEEE 

standard, and then the specification discloses that developments in the field included at the time a 

proposal to use an additional extension 802.1Q packet header (’888 patent, 5:49-55), and the 

specification teaches that “[t]he use of the additional packet header provides for a hierarchical 

grouping of VLANS referred to as VLAN stacking.”. ’888 patent, 5:55-57. Thus, a stackable trunk 

port need only support the use of an additional VLAN header. See also, Id., Fig. 2. Defendants’ 

proposed construction should be rejected.

6. “backbone VLAN trunk” (Claims 1, 5, 6, 7, 12, 15, 16, 17, 18, 19, 20)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning “data transport trunk links defined between 

stackable trunk ports on core routers”

This term should be given its plain and ordinary meaning. Defendants’ proposed 

construction should be rejected at least for improperly importing limitations from the specification. 

Toshiba, 681 F.3d 1369 (“Absent disclaimer or lexicography, the plain meaning of the claim 

controls.”). Defendants’ proposed construction improperly seeks to limit this term to require “data 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 15 of 29
11

transport trunk links defined between stackable trunk ports on core routers.” There is no 

requirement in the claims or specification that this term carries requirements such as stackable 

trunk ports or core routers. It appears Defendants are attempting to improperly import limitations 

from an exemplary embodiment in the specification. See e.g., ’888 patent, 8:61-9:35 (“In 

accordance with an exemplary embodiment...”) (emphasis added). Neither the specification nor 

the claims impose any such limitations upon this term. Instead, the specification describes another 

exemplary embodiment describing that a backbone VLAN trunk bridges two domains: 

“Inevitably edge managed data network elements at the edge of a 

managed data transport network 100 are used to provide 

connectivity with adjacent data transport networks managed by peer 

service providers. Therefore backbone VLAN trunks 308 bridging 

two managed domains exist.” Id., 11:49-51. 

Moreover, Defendants’ proposed construction should be rejected for being confusing and 

expressly rejected by the specification, at least as to “core routers”:

“The definition of a core router is somewhat blurred as the data 

transport industry is undergoing a “box consolidation” trend 

wherein even the routers can be logical entities (such as virtual 

routers). The concepts will be described herein making reference to 

distinct access routers (106) and core routers (306) without limiting 

the invention thereto.” Id., 8:52-57 (emphasis added). 

In other words, the specification expressly warns that the phrase “core routers” is vague 

and unreliable (“somewhat blurred”), and the specification expressly discloses that the phrase is 

not intended to be limiting on the invention in any way. Accordingly, for at least the reasons above, 

Defendants’ proposed construction should be rejected. 

7. “wherein the selection and association of at least one backbone VLAN 

ID with each one of the corresponding plurality of backbone VLAN 

trunks is undertaken irrespective of one of an in-use and a stand-by 

designation of each one of the plurality of backbone VLAN trunks 

and each one of the plurality of stackable trunk ports” (Claim 1) / 

“wherein the association of the plurality of backbone VLAN IDs with 

the backbone VLAN trunk is undertaken irrespective of one of an inuse and a stand-by designation of the backbone VLAN trunk and the 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 16 of 29
12

at least one stackable trunk port” (Claim 15)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning “wherein the provisioning method ignores the 

designation of a backbone VLAN trunk as inuse or stand-by when associating the 

backbone VLAN ID with the backbone 

VLAN trunks (as opposed to, during 

association of VLANs with trunks, explicitly 

designating physical VLANs associated with a 

logical VLAN as in-use and explicitly 

designating other physical VLANs associated 

with the logical VLAN as back-up)”

These terms should be given their plain and ordinary meaning. Defendants’ proposed 

construction is vague and unclear. That Defendants’ proposed construction requires a parenthetical 

alone shows that Defendants’ proposed construction should be rejected as being vague and 

confusing. Furthermore, Defendants’ proposed construction is also vague and confusing as to its 

use of the word “ignores” in “ignores the designation.” It is at least unclear whether Defendants 

are intending an affirmative act be taken in order to “ignore.” This is especially the case given 

Defendants’ parenthetical that seeks to differentiate “ignores the designation” with “explicitly 

designating,” which appears to have an affirmative act component of “designating,” which does 

not appear in the claim language. 

The plain language of the claims avoids any such confusion (and the need for a 

parenthetical) by simply stating that the association is undertaken “irrespective of one of an in-use 

and stand-by designation.” Moreover, the specification distinguishes the practice of the prior art 

by disclosing that “[p]rior art VLAN provisioning methods typically call only for trunk ports 102 

and routers 106 associated with in-use data transport trunks 108 to be included in VLAN 

provisioning.” ’888 patent, 3:64-67. As opposed to the plain language of the claims themselves, 

Defendants’ proposed construction is unnecessary and confusing and should be rejected. 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 17 of 29
13

IV. U.S. Patent No. 7,565,435 (Case No. 6:20-cv-00476) Claim Terms

8. “setting the IPPC of one of the ports of one of said bridges within the 

MSTI to a lower IPPC when said port is part of the VLAN member 

set” (Claims 1, 8, 13)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning order of steps

The setting of the IPPC to a lower IPPC must 

occur after the creation and configuration of 

the Multiple Spanning Tree Instances step and 

after the creation of the VLAN member sets 

step

Defendants seek to limit the order of this term that occurs in Claims 1, 8, and 13 of the 

’435 patent. Claim 1 is a method claim and Claims 8 and 13 are system and apparatus claims. 

WSOU contends that the language of the claims should be given its plain and ordinary meaning 

and that any antecedent basis recited by the claim language will govern any required order of any 

of the steps. “Unless the steps of a method actually recite an order, the steps are not ordinarily 

construed to require one. However, such a result can ensue when the method steps implicitly 

require that they be performed in the order written.” Interactive Gift Express, Inc. v. Compuserve 

Inc., 256 F.3d 1323, 1342-43 (Fed.Cir.2001). 

Additionally, while Claim 1 is a method claim, Claims 8 and 13 are system and apparatus 

claims, which do not require performance of steps. Hewlett-Packard Co. v. Bausch & Lomb, Inc., 

909 F.2d 1464, 1468, 15 USPQ2d 1525 (Fed. Cir. 1990) (“apparatus claims cover what a device 

is, not what a device does.”) (emphasis in original). Thus, for at least Claims 8 and 13, Defendants’ 

proposal for the order of steps makes no sense. Regardless, even only considering this term as to 

Claim 1, Defendants’ proposal to limit the claim to a specific order of steps is unwarranted because,

at the very least, there is no requirement in the claim language that the so-called “creation and 

configuration of the Multiple Spanning Tree Instances step” and the “creation of the VLAN 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 18 of 29
14

member sets step” must be completed before the performance of the term at issue (so-called 

“setting the IPPC to a lower IPPC”) begins.I In other words, nothing prevents the steps from being 

performed concurrently. See Cybersettle, Inc. v. National Arbitration Forum, Inc., 243 Fed. Appx. 

603 (Fed. Cir. 2007) (nonprecedential) (“We agree with NAF that the comparison and testing steps 

logically cannot begin until an offer and a demand are received. But that does not mean that the 

‘receiving’ steps must be completed before the comparison and testing steps begin. To the 

contrary, the step of calculating the differences between demands and offers can occur 

concurrently with the receipt of multiple demands and offers. As each new pair of bids is received, 

the bids are compared.”) 

The two “steps” that Defendant contend must be performed first do not have to be 

completed before the term at issue is performed. The two “steps” Defendant identify in Claim 1 

recite:

“creating and configuring a plurality of Multiple Spanning Tree 

Instances (MSTIs) whose active topology covers the topology of 

Virtual Local Area Networks (VLANs) being used within the 

computer network;

creating VLAN member sets and associating each of said VLANs 

with an appropriate one of the MSTIs, each of said VLAN member 

sets indicating the ports in each of the bridges within one of the

MSTIs to which data traffic destined to members of the associated 

VLAN is being forwarded;” ’435 patent, 9:61-10:3 (emphasis 

added). 

As shown by the language of Claim 1, there is nothing in the claim language that prevents 

the term at issue from being performed before all of the “plurality” of Multiple Spanning Tree 

Instances are created and configured and before all the VLAN member sets are created. 

Defendant’s proposal to limit the claims should be rejected. 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 19 of 29
15

9. “ideally” (Claims 7, 11, 18)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite

This term should be given its plain and ordinary meaning. “Ideally” is not a term of degree,

and it is not subjective. In fact, it is just the opposite. As the claim language itself shows, “high 

IPPC is a value that is ideally between the highest value allowed by an encoding and the highest 

IEEE standard recommended value, regardless of the type of links that are connected to the 

corresponding ports that are not part of the VLAN member set.” See ’435 patent, 10:45-49 (Claim 

7), 11:32-36 (Claim 11), 12:45-49 (Claim 18). The term “ideally” as used in the claims is providing 

an objective indication for what the high IPPC value should be set to. 

10. “processing unit for setting the Internal Port Path Cost (IPPC) of one 

of the ports of one of said bridges within the MSTI to a high IPPC 

when said port is not part of the VLAN member set” (Claim 8)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: read a priority of a data frame to be 

forwarded onto the connection-based network 

by way of the first one of the ports, identify a 

service interface which the map indicates 

corresponds to the read user priority and 

forward the data frame over the channel in the 

connection-based network associated with the 

identified service interface

Structure: Indefinite

This term should be given its plain and ordinary meaning. Because this term does not 

contain the words “means for,” there is a rebuttable presumption that section 112, paragraph 6, 

does not apply to that limitation. Williamson ̧792 F.3d at 1348. That presumption can be overcome, 

but only “if the challenger demonstrates that the claim term fails to ‘recite sufficiently definite 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 20 of 29
16

structure’ or else recites ‘function without reciting sufficient structure for performing that 

function.’” Id. at 1349. The question whether the term “processing unit” invokes section 112, 

paragraph 6, depends on whether persons skilled in the art would understand the claim language 

to refer to structure, assessed in light of the presumption that flows from the drafter’s choice not 

to employ the word “means.” Prisua Eng'g Corp., 948 F.3d at 1354. “To determine whether the 

claim limitation at issue connotes sufficiently definite structure to a person of ordinary skill in the 

art, [courts] look first to intrinsic evidence, and then, if necessary, to the extrinsic evidence.” Tek 

Global, 920 F.3d at 785; see also Skky, 859 F. 3d at 1019 (‘To determine whether a claim recites 

sufficient structure, "it is sufficient if the claim term is used in common parlance or by persons of 

skill in the pertinent art to designate structure, even if the term covers a broad class of structures 

and even if the term identifies the structures by their function.”’). 

Here, a person of skill in the art would understand the claim language to refer to structure, 

where the specification provides certain exemplary embodiments that recite “the processing units 

108 in bridges A, B, C and D are used to set the IPPC of any port P1, P2 and P3 of any bridge A, 

B, C and D within one MSTI to a HiIPPC value if that port is not part of the VLAN member set.” 

’435 patent, 7:57-61 (emphasis added). Moreover, the specification also states that “it can be 

readily appreciated by those skilled in the art that the present invention provides a method for 

fully- or semi-automatically configuring IPPCs of ports in the bridges of a computer network and 

in fully- or semi-automatically creating as many new MSTIs as necessary to ensure proper VLAN 

connectivity.” Id., 8:4-9. Accordingly, as the specification shows, the “processing unit” in this 

term is a processor within a bridge device. See e.g., Prisua Eng'g Corp., 948 F.3d at 1354 (holding 

that a ‘digital processing unit’ is not subject to § 112, ¶ 6, because the term ‘clearly serves as a 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 21 of 29
17

stand-in for a ‘general purpose computer’ or a ‘central processing unit,’ each of which would be 

understood as a reference to structure). 

11. “processing unit for setting the IPPC of one of the ports of one of said 

bridges within the MSTI to a lower IPPC when said port is part of the 

VLAN member set” (Claim 8)

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning This term is subject to 35 U.S.C. § 112, ¶ 6.

Function: read a priority of a data frame to be 

forwarded onto the connection-based network 

by way of the first one of the ports, identify a 

service interface which the map indicates 

corresponds to the read user priority and 

forward the data frame over the channel in the 

connection-based network associated with the 

identified service interface

Structure: Indefinite

This term should be given its plain and ordinary meaning. Because this term does not 

contain the words “means for,” there is a rebuttable presumption that section 112, paragraph 6, 

does not apply to that limitation. Williamson ̧792 F.3d at 1348. The presumption here is not 

overcome for similar reasons as discussed for the similar “processing unit” term immediately 

above. More specifically, here, a person of skill in the art would understand the claim language to 

refer to structure, where the specification provides certain exemplary embodiments that recite “the 

processing units 108 in bridges A, B, C and D are used to set the IPPC of any port P1, P2 and P3 

of any bridge A, B, C and D within one MSTI to a LoIPPC value if that port is part of the VLAN 

member set.” ’435 patent, 7:63-67 (emphasis added). Moreover, the specification also states that

“it can be readily appreciated by those skilled in the art that the present invention provides a 

method for fully- or semi-automatically configuring IPPCs of ports in the bridges of a computer 

network and in fully- or semi-automatically creating as many new MSTIs as necessary to ensure 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 22 of 29
18

proper VLAN connectivity.” Id., 8:4-9. Accordingly, as the specification shows, the “processing 

unit” in this term is a processor within a bridge device. See e.g., Prisua Eng'g Corp., 948 F.3d at 

1354 (holding that a ‘digital processing unit’ is not subject to § 112, ¶ 6, because the term ‘clearly 

serves as a stand-in for a ‘general purpose computer’ or a ‘central processing unit,’ each of which 

would be understood as a reference to structure). 

12. Entirety of claims [9-11, 13-18]

WSOU’s Proposed Construction Defendants’ Proposed Construction

Plain and ordinary meaning Indefinite

Defendants contend that the entirety of claims 9-11 and 13-18 are indefinite, and 

Defendants further purport that treatment of this issue constitutes one claim “term” for purposes 

of Markman. WSOU disagrees that Defendants can group together the entirety of each of the nine 

claims as a single issue. See Schumer v. Laboratory Computer Systems, 308 F.3d 1304, 1316 (Fed. 

Cir. 2002) (“When determining the validity of the claims of a patent, each claim 

must be separately considered”). Regardless, Defendants have represented that their argument is 

based in IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377 (Fed. Cir. 2005). While 

WSOU objects to any attempt to treat each of the nine claims identified by Defendants as a single

issue, WSOU has reviewed each of the nine individual claims separately and disputes that there is 

any issue under IPXL. See e.g., MasterMine Software, Inc. v. Microsoft Corporation, 874 F.3d 

1307, 1313-16 (Fed. Cir. 2017) (reversing the district court’s indefiniteness determination and 

distinguishing from IPXL Holdings and In re Katz Interactive Call Processing Patent Litig., 639 

F.3d 1303 (Fed. Cir. 2011), holding that “the claims at issue here merely claim that the system 

'possess[es] the recited structure [which is] capable of performing the recited functions.'”); 

UltimatePointer, L.L.C. v. Nintendo Co., 816 F.3d 816, 827-28 (Fed. Cir. 2016) (Holding that the 

claims were unlike those in IPXL Holdings and Katz because they "make clear that the ‘generating 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 23 of 29
19

data’ limitation reflects the capability of that structure rather than the activities of the user," and 

"do not reflect an attempt to claim both an apparatus and a method, but instead claim an apparatus 

with particular capabilities."). 

V. U.S. Patent No. 8,402,129 (Case No. 6:20-cv-00479) Claim Terms

A. “rate of change” (claim 3)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Plain and ordinary meaning; not an instantaneous 

value measured at a fixed point in time

Dell’s construction suffers from multiple flaws. 

First, the plain and ordinary meaning should apply as neither of the Thorner exceptions—

lexicography or disavowal—apply. Dell concedes that a plain and ordinary meaning should apply 

but then goes onto posit a false definition of “rate of change” that does not comport with the 

understanding of a POSITA. In particular, any given variable can change over time, and the “rate 

of change” (or first derivative using calculus terminology) is merely the change of that variable 

over time. For instance, distance is a variable and velocity is the “rate of change” of distance per 

unit of time. A POSITA would understand that “rate of change” would include both what Dell 

calls “instantaneous value[s] at a fixed point in time” and continuous values for different time 

periods. For instance, “rate of change” would encompass how a car might be traveling at 60 miles 

per hour at a fixed point of time and the various speeds a car travels over a time duration. This 

comports with the specification’s description of “at each time t, a determination is made as to 

whether the rate of change of the monitored variable at any node exceeds a fixed amount δ.” ’129 

patent at 6:16-18; accord id. at 6:37-39 (“It is seen from the foregoing that the strategy of the 

processes of FIGS. 4 and 5 is to monitor the rate of change of the monitored variable x1(t).”) 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 24 of 29
20

Dell’s carve-out of “not an instantaneous value measured at a fixed point in time” would exclude 

the preferred embodiment’s description of “rate of change” and is thus improper. 

Second, Dell relies on flawed legal theory to argue that the prosecution history should limit 

the plain and ordinary meaning. In its motions to dismiss, Dell has twice argued that “the applicant 

made clear that the ‘rate of change’ is how much a parameter changes over time, not just the value 

of the parameter at a single point in time.” -479 Case, Dkt. 31 at 3; -479 Case, Dkt. 36 at 3. But 

the test for disavowal is not merely what the applicant “made clear”; rather, “[t]o disavow the full 

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

represent ‘a clear disavowal of claim scope.’” CloudofChange, 2020 WL 4004810, at *2 (quoting 

Thorner, 669 F.3d at 1366). In other words, even if the applicants had “made clear,” as Dell 

contends (WSOU disputes this assertion), it would not be enough, because there must be a “clear 

disavowal of claim scope. See id.

Third, even if Dell had applied the proper disavowal legal standard, Dell also misrepresents 

the record by citing only to snippets of the prosecution history and ignoring the statements in their 

context. Dell first relies on the underlined statement in the prosecution history; WSOU has 

provided the surrounding comments for full context:

Mandal does not teach a rate of change. Rather, Mandal teaches a 

policy in which a value of the percentage of bandwidth used for 

video, measured at a specific time, is compared against the 30% 

threshold. For example, at time t1, the percentage of bandwidth 

which is used for video is 28%, which is less than the threshold of 

30%. This simply does not teach or suggest a rate at which the 

percentage of bandwidth used for video changes. For example, a 

value of 28% at a specific point in time does not teach or suggest 

that the percentage of bandwidth used for video has changed at a 

rate of, for example, 3% per hour. In other words, as taught in 

Mandal, the value is an instantaneous value, measured at a fixed 

point in time, that is compared against the threshold value. An 

instantaneous value measured at a fixed point in time, as taught in 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 25 of 29
21

Mandal, is simply not a rate of change, as claimed in Applicants’ 

claim 1.

-479 Case, Dkt. 31 at 3 quoting -479 Case, Dkt. 31-2 at 28); accord -479 Case, Dkt. 36 at 3 (quoting 

-479 Case, Dkt. 36-2 at 28). 

Here, the Applicants merely stated that the variable being monitored in Mandal is not a 

“rate of change,” but merely a value of the percentage of traffic used for video at point in time t1

(28% in the example). They contrasted Mandal’s disclosure with a theoretical disclosure that 

would disclose the rate of change of percentage of bandwidth used for video (3% per hour in the 

example). The reference to “instantaneous value measured at a fixed point in time” merely is to 

show that no variable is disclosed as changing per unit of time (as indicated in “per hour” in the 

example). 

A second portion of the prosecution history is even less supportive of Dell’s position. Dell 

cites to the underlined portion of the below:

The cited portions of Boukobza, however, fail to teach or suggest 

any parameter indicative of a rate of change of usage of a resource 

or monitoring a rate of change of usage of a resource. Rather, the 

cited portions of Boukobza merely describe generic parameters that 

may be measured or tested relative to predefined thresholds. The 

cited portions of Boukobza do not teach or suggest monitoring a rate 

of change of usage of a resource.

See, e.g., -479 Case, Dkt. 31 at 3 (quoting -479 Case, Dkt. 31-2 at 9). 

Similar to first portion of the prosecution history discussed above, the Applicants were 

explaining that the cited reference (in this case Boukobza) merely describes parameters that were 

measured against a threshold. The reference to “generic” is meant to indicate that parameters were 

generally disclosed, but there was no reference to these parameters being “rate of change of usage 

of a resource.” Both references (Mandal and Boukobza) did not disclose any “rate of change,” and 

that was the only point the Applicants were making. Accordingly, the Applicants did not in any 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 26 of 29
22

way suggest of limiting claim scope and certainly did not constitute the requisite “clear disavowal 

of claim scope.”

B. “initiating a poll of resources in the nodes of the network by the management 

station in response to reporting from the node or a time interval being 

exceeded” (claim 3)

WSOU’s Proposed Construction Defendant’s Proposed Construction

Plain and ordinary meaning Both of these events trigger a poll 

Dell’s construction suffers numerous flaws. 

First, neither of the Thorner exceptions—lexicography or disavowal—apply, so plain 

meaning should stand. 669 F.3d at 1365. The plain and ordinary meaning of the claim language 

requires “initiating a poll ... by the management station in response to reporting from the node or 

a time interval being exceeded.” The syntax of the claim requires that the management station must 

be capable of initiating a poll in response to both “reporting from the node” and “a time interval 

being exceeded.” But the management station only “initat[es] a poll” when one of the two events 

are met—"reporting from the node or a time interval being exceeded.” This comports with the 

specification’s description that “[t]he centralized node is arranged to poll all (or a designated 

number of) nodes if either the rate of change exceeds a threshold, or a time interval is exceeded.” 

’129 patent at 6:39-41.

Second, Dell’s construction will also confuse the jury. For instance, the claim language 

recites “initiating a poll,” and Dell attempts to substitute that language with “trigger a poll.” There 

is nothing unclear about the word “initiating.” See Pisony v. Commando Construction, Inc., No. 

W-17-CV-00055-ADA, 2019 WL 928406, at *6 (W.D. Tex. Jan. 23, 2019) (“the Court finds such 

a substitution unnecessary because the words chosen by the scrivener ... are more than adequate 

to be understood by one who is skilled in the art.”). Dell’s construction is also ambiguous to the 

extent it would require “[b]oth of these events.” The jury will be confused by what is meant by 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 27 of 29
23

“events,” and there is no reason to deviate from the language of the claims. Moreover, it is unclear 

whether Dell means that both events can individually initiate a poll (which is consistent with the 

plain and ordinary meaning) or that both events are required in tandem to initiate a poll (which is 

contrary to the plain and ordinary meaning).

Third, Dell’s construction erases limitations in the term, including the fact that the 

“initiating a poll ... by the management station in response to ...” Dell’s construction is 

completely oblivious to the requirement that “initiating the poll”’ be “by the management station.”

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 28 of 29
24

Dated: February 17, 2021 Respectfully submitted,

By: /s/ Ryan Loveless

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Brett A. Mangrum 

Texas Bar No. 24065671 

Travis L. Richins 

Texas Bar No. 24061296 

Jeffrey Huang

Brian M. Koide

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Brett@EtheridgeLaw.com 

Travis@EtheridgeLaw.com 

JHuang@EtheridgeLaw.com 

Brian@EtheridgeLaw.com

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

Counsel for Plaintiff WSOU Investments, LLC

CERTIFICATE OF SERVICE

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

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

17, 2021.

/s/ James L. Etheridge

James L. Etheridge 

Case 6:20-cv-00474-ADA Document 82 Filed 02/17/21 Page 29 of 29