IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

WSOU INVESTMENTS, LLC D/B/A 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v. 

GOOGLE LLC,

Defendant.

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CIVIL ACTION 6:20-cv-00571-ADA

CIVIL ACTION 6:20-cv-00578-ADA

CIVIL ACTION 6:20-cv-00583-ADA

CIVIL ACTION 6:20-cv-00584-ADA

PLAINTIFF’S REPLY CLAIM CONSTRUCTION BRIEF

Case 6:20-cv-00571-ADA Document 40 Filed 02/26/21 Page 1 of 12
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TABLE OF CONTENTS

Table of Contents............................................................................................................................ ii

Table of Authorities....................................................................................................................... iii

Exhibits.......................................................................................................................................... iv

Abbreviations...................................................................................................................................v

I. U.S. PATENT NO. 7,777,728 (Case No. 6:20-cv-00583-ADA) ........................................1

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

II. U.S. PATENT NO. 9,335,825 (Case No. 6:20-cv-00578-ADA) ........................................3

A. “continuous wave doppler radar” (Claims 1 and 19)...............................................3

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

with the at least one processor, to cause the apparatus to at least: detect 

that an application is being started on the apparatus; in response to the 

application being started on the apparatus, turn on a continuous wave 

doppler radar at the apparatus” (Claim 1)................................................................5

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TABLE OF AUTHORITIES

Cases

Dyfan, LLC v. Target Corp.,

No. 6:20-cv-00580-ADA, Dkt. 34 (W.D. Tex. Nov. 24, 2020)................................................. 5

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

991 F.2d 768 (Fed. Cir. 1993).................................................................................................... 3

LG Electronics, Inc. v. Bizcom Electronics, Inc.,

453 F.3d 1364 (Fed. Cir. 2006).................................................................................................. 5

Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005).............................................................................................. 2, 4

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

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

Scripps Clinic & Research Found. v. Genentech, Inc.,

927 F.2d 1565 (Fed.Cir.1991).................................................................................................... 3

SRI Int'l v. Matsushita Elec. Corp. of Am.,

775 F.2d 1107 (Fed.Cir.1985).................................................................................................... 3

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

669 F.3d 1362 (Fed. Cir. 2012).............................................................................................. 1, 2

Zeroclick, LLC v. Apple Inc.,

891 F.3d 1003 (Fed. Cir. 2018).............................................................................................. 5, 6

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EXHIBITS

Exhibit Description

A Wikipedia, Continuous Wave Radar,

https://web.archive.org/web/20120418124039/http://en.wikipedia.org:80/wiki/Continuouswave_radar (archived Apr. 18, 2012)

B Federation of American Scientists, ES310: Introduction to Naval Weapons Engineering 

Course Syllabus, Lesson 10: Continuous Wave Radar,

https://web.archive.org/web/20091227095356/https://fas.org/man/dod101/navy/docs/es310/cwradar/cwradar.htm (archived Dec. 27, 2009)

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ABBREVIATIONS

Abbreviation Description

Br. Plaintiff’s Opening Claim Construction Brief

POSITA person of ordinary skill in the art

Resp. Google’s Responsive Claim Construction Brief

’728 patent U.S. Pat. No. 7,777,728

‘825 patent U.S. Pat. No. 9,335,825

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I. U.S. PATENT NO. 7,777,728 (CASE NO. 6:20-CV-00583-ADA)

A. “tap direction” (Claims 1, 11, 16)

WSOU’s Proposed Construction Google’s Proposed Construction

Plain and ordinary meaning tap direction that extends between the first tap

position and a second tap position

Before addressing Google’s erroneous arguments in the numbered paragraphs below, 

WSOU notes that Google fails to allege either of the recognized exceptions to plain and ordinary 

meaning—lexicography or disavowal. Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 

1365 (Fed. Cir. 2012). Accordingly, the plain and ordinary meaning of “tap direction” should stand

and no construction is needed.

First, as a threshold matter, Google is wrong to invoke O2 Micro and claim that “reliance 

on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.” Resp. at 1 (quoting O2 Micro 

Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed. Cir. 2008)). Google’s 

construction of “tap direction” includes the very same term in its proposed construction. By force 

of logic, Google tacitly concedes that the term “tap direction” has a plain and ordinary meaning by 

using that very same term verbatim in its proposed construction. 

Second, with respect to the claims, Google errs by asserting that “WSOU’s construction 

would . . . read the word ‘tap’ out of the claim[s].” Resp. at 2. Google ignores the surrounding 

claim language. Claim 1 recites “a tap direction that extends between the first position and a second 

position.” Both “first position” and “second position” are expressly referenced in claim 1, i.e., 

“detecting the touch of a first key on the touch sensitive display at a first position” and a “second 

position is the position of a previously detected touch of a second key of the touch sensitive 

display.” Independent claim 11 recites similar language. The claims lack the limitation that Google

attempts to impose—i.e., that “‘tap’ mean[s] a press-down followed by a lift-up in the same 

location.” Resp. at 3. Rather, as evident by the claim language itself, the “tap direction” is dependent 

on the detected “touch[es]” of the touch sensitive display. WSOU’s construction thus does not read 

the word “tap” out of the claims as Google contends.

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Third, Google erroneously reads the specification as “confirm[ing] that the patentee 

understood ‘tapping’ to mean tapping, that is, a press-down followed by a lift-up in the same 

location.” Resp. at 2. To support its erroneous reading, Google claims that the specification 

reference to “pointing/tapping/dragging with a pointer” confirms that “pointing,” tapping,” and 

“dragging” are (using Google’s own words) “different actions.” See id. Google ignores the proper 

reading that all three terms are not mutually exclusive alternatives, but rather interrelated terms that 

can overlap. For instance, a user may “point” to something and that may also be understood to be a 

“tap.” “Dragging” is also interrelated to “tapping” and “pointing.” A “dragging” operation first 

starts with a “point” or a “tap,” and then the cursor is slid over the touch screen. Based on this 

proper understanding of the word “tap direction” in the claims, the Applicant did not give up the 

“pointing” and “dragging” operations as Google claims. Resp. at 2.

Fourth, Google also wrongly relies on the specification’s description where the user “lifts 

and moves the stylus along a path 162, and presses down the stylus at a new position 163.” Resp. 

at 3 (quoting ’728 patent at 7:12-17). But Google fails to note the language it quotes originates from 

a paragraph qualifying that the description is merely “[t]o illustrate the method” and also as “an 

example.” ’728 patent at 7:10-11. Thus, Google commits the “cardinal sin” of importing limitations 

from the specification. See Phillips v. AWH Corp., 415 F.3d 1303, 1319-20 (Fed. Cir. 2005) (en 

banc). Nor was this a “clear and unequivocal disavowal” of the concepts of “pointing” and 

“dragging” described in the specification. Thorner, 669 F.3d at 1366.1

Fifth, Google’s reliance on a purported commercial embodiment of the ’728 patent is flawed 

both factually and legally. On the facts, Google provides no evidence that links the purported 

commercial embodiment (the Nokia N770) with the ’728 patent. See Resp. at 3. The ’728 patent 

lacks any reference to the Nokia N770 product, and there is not even any recognition in the patent 

that a commercial embodiment existed. Google’s only basis is to compare figures of the ’728 patent 

1 The term “pointing/tapping/dragging” is described as part of the “embodiments of the present 

invention.” See id. at 4:54-55 (referring to “pointing/tapping/dragging” as being illustrated in FIG. 

1); id. at 3:54-61 (describing FIG. 1 generally as “[e]mbodiments of the present invention” and 

specifically as a view of “one embodiment”).

Case 6:20-cv-00571-ADA Document 40 Filed 02/26/21 Page 7 of 12
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and purported depictions of the Nokia N770 product. See id. (citing Ex. 2 and Ex. 1). Based on this 

comparison (unsupported by any testimony), Google concludes that the ’728 patent “depicts” the 

Nokia N770 device. Google also lacks any evidence for its statement that “Nokia released [the N770 

device] shortly before” it filed the application” for the ’728 patent. See id. Google’s attempt to link

purported commercial embodiment to the patent fails to acknowledge the possibility that Nokia 

may have directed its patent to subject matter that was never commercialized or even made public. 

Even if Google could establish that the Nokia N770 is a commercial embodiment of the ’728 patent 

(for instance, if the specification expressly stated so or if Google provided actual evidence), it would 

be improper to consider the commercial embodiment when construing the claim term. International 

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

judgment of no literal infringement for error in claim construction where district erroneously relied 

upon patentee’s commercial embodiment to construe claim limitation).2

II. U.S. PATENT NO. 9,335,825 (CASE NO. 6:20-CV-00578-ADA)

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

WSOU’s Proposed Construction Google’s Proposed Construction

Plain and ordinary meaning a Doppler radar that emits an uninterrupted 

electromagnetic signal

By using the term “Doppler radar” in its construction, Google does not dispute that the term 

“doppler radar” has a plain and ordinary meaning. See Br. at 6; see also Resp. at 4. Nor does Google 

dispute that the term “continuous wave” would have a plain and ordinary meaning to a POSITA. 

See Resp. at 4-5. And the parties also agree that the patent discloses two types of doppler radar 

2 Google also errs by construing the claims in light of the accused device. Google asks the Court 

to consider WSOU’s accusations against Google’s glide typing in the accused instrumentalities. 

See Resp. at 2. But “[a] claim is construed in the light of the claim language ... not in light of the 

accused device.” SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1118 (Fed.Cir.1985)

(en banc). Th only exception to the SRI is when that accused products can be considered to “focus 

on the construction of only the disputed elements or limitations of the claims.” Scripps Clinic & 

Research Found. v. Genentech, Inc., 927 F.2d 1565, 1580 (Fed.Cir.1991). Here, this exception 

does not apply as the parties have already identified the term “tap direction” as being in dispute.

Case 6:20-cv-00571-ADA Document 40 Filed 02/26/21 Page 8 of 12
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detectors (continuous wave and pulsed) but that the claims only recite “continuous wave.” See Br. 

at 6; Resp. at 4-5. The only dispute is whether Google should be allowed to replace the claim 

language “continuous wave” with “emit[ing] an uninterrupted electromagnetic signal.”

Google, however, provides no evidence that a POSITA would understand “continuous 

wave” to be the same as “emit[ing] an uninterrupted electromagnetic signal.” As WSOU noted, 

both the specification and claims lack any reference to the word “uninterrupted” or “interrupted” 

(or any form of those words). Br. at 6. The only evidence Google cites to support that the word 

“continuous” means “uninterrupted” is a general-purpose dictionary. Resp. at 4 (citing Ex. 4). But 

there is no indication in Google’s general-purpose dictionary that the definition was intended to 

apply to the context of radar waves or even the broader concept of electronic magnetic waves. 

Rather, the dictionary definition itself has a “[u]sage” note which refers to its common lay 

understanding. Ex. 4 at 125 (“The coast is continually pounded by storms. The external flame burns 

continuously.”). Google’s “heavy reliance on the dictionary divorced from the intrinsic evidence 

risks transforming the meaning of the claim term to the artisan into the meaning of the term in the 

abstract, out of its particular context, which is the specification.” See Phillips, 415 F.3d at 1321. 

Google inability to cite any technical treatises or technical dictionaries to support its “uninterrupted” 

position is indicative that it could find no such support in the technical literature.

Google’s grafting of the word “uninterrupted” from a general dictionary into the 

construction creates a problem relating to clarity. As noted, if the Court were to adopt Google’s 

construction, it could be misapplied to carve out one particular type of “continuous wave” doppler 

radar that is described in the specification—namely, the “Frequency Modulated Continuous Wave”

(FMCW) where the “time signature” may have a “period variation in frequency.” Id. at 4:33-36 

(“The time signature may, for example, be ... a periodic variation in frequency (Frequency 

Modulated Continuous wave).”). Because Google has pointed to no evidence that a POSITA would 

even understand “uninterrupted” in the context of “continuous wave,” it might be misapplied as 

suggesting that frequency modulation as “interrupts” an emitted signal, thus carving out FMCW 

from the broader category of “continuous wave doppler radar.”

Case 6:20-cv-00571-ADA Document 40 Filed 02/26/21 Page 9 of 12
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B. “at least one memory and the computer program code are configured, with 

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

application is being started on the apparatus; in response to the application 

being started on the apparatus, turn on a continuous wave doppler radar at 

the apparatus” (Claim 1)

Google’s approach effectively treats “processor,” “memory,” and “computer program code” 

as nonce words, which can operate as substitutes for “means” and bring the disputed claim 

limitations within the ambit of § 112, ¶ 6. On analogous claims to the ones here, the Federal Circuit 

found such an approach “erroneous” for three related reasons. See Zeroclick, LLC v. Apple Inc., 891 

F.3d 1003, 1008 (Fed. Cir. 2018).

3

First, Google argues that claim 1 does not “convey any meaningful structure.” Resp. at 7; 

see also id. (referring to “detailed functional tasks recited in the body of the claim”). But “the mere 

fact that the disputed limitations incorporate functional language does not automatically convert the 

words into means for performing such functions.” See Zeroclick, 891 F.3d at 1008; see also LG 

Electronics, Inc. v. Bizcom Electronics, Inc., 453 F.3d 1364, 1372 (Fed. Cir. 2006) (the presumption 

was not overcome because the “claim itself provides sufficient structure, namely ‘a CPU and a 

partitioned memory system,’ for performing the stated function, ‘controlling the communication 

unit.’”).4

Second, Google cherry picks portions of the specification to portray the processor, memory, 

and computer program code as “black-box placeholders.” Resp. at 7. As an initial matter, Google 

completely ignores portions of specification that describe conventional structure. The specification 

describes “processor 20 may . . . comprise an output interface via which data and/or commands are 

output by the processor 20 and an input interface via which data and/or commands are input to the 

3 In Zeroclick, the Federal Circuit found A claim not subject to § 112, ¶ 6 that recited “A device 

.... comprising a processor .... executable user interface code stored in a memory connected to the 

processor ... [and] the user interface code executable by the processor.” Id. at 1006. The analogous 

structure of the claims here makes Zeroclick a better guide than Dyfan, LLC v. Target Corp., No. 

6:20-cv-00580-ADA, Dkt. 34 (W.D. Tex. Nov. 24, 2020).

4 Google wrongly suggests that the Court should not rely on the LG case because it is “preWilliamson.” Resp. at 7-8. The Federal Circuit, however, has expressly relied on the same 

proposition cited by WSOU in post-Williamson cases. E.g., Samsung Elecs. Am., Inc. v. Prisua 

Eng'g Corp., 948 F.3d 1342, 1354 (Fed. Cir. 2020) (citing LG, 453 F.3d at 1372).

Case 6:20-cv-00571-ADA Document 40 Filed 02/26/21 Page 10 of 12
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processor 20.” ’825 patent at 5:22-23. The memory 22 is clearly described as structural because it 

“may be integrated/removable.” Id. at 5:45-47. The “processor20 by reading the memory 22 is able 

to load and execute the computer program 24, 26.” Id. at 5:33-34. A POSITA would reasonably 

discern from the claim language that the terms are not used as black-box recitations of structure but 

rather as specific references to conventional components. Accordingly, Google’s “analysis [is] 

removed the terms from their context, which otherwise strongly suggests the plain and ordinary 

meaning of the terms. See Zeroclick, 891 F.3d at 1008. 

Third, Google has also made no showing that compels the conclusion that the conventional 

structures was used a substitute for “means.” See Zeroclick, 891 F.3d at 1009 (“The district court 

thus erred by effectively treating “program” and “user interface code” as nonce words and 

concluding in turn that the claims recited means-plus-function limitations.”).

Finally, with respect to the second step of the means-plus-function inquiry, the Court need 

not even go there as there is sufficient structure as noted above. In the event it does, Google ignores 

the structure disclosed in the specification. The processor, as noted above, includes “output interface 

via which data and/or commands are output by the processor 20 and an input interface via which 

data and/or commands are input to the processor 20.” ’825 patent at 5:20-23. Hardly the “empty 

rectangle” in Google’s depiction. Resp. at 8. Moreover, even if they lacked the detail Google claims, 

the processor, memory, and computer program code themselves would all constitute corresponding 

structure. With respect to the algorithm, the specification specifically describes an “external event, 

such as an alarm, alert or other event may enable the controller 14,” and correspondingly when the 

“enabled controller then enables the radio transmitter, radio receiver and gesture detector.” Id. at 

8:40-43. The specification also describes various exemplary scenarios where there is a detection of 

an application (e.g., an incoming telephone call, an alarm alert, or when the user activates a remote 

control mode) being started and the “controller turns on the radar.” Id. at 8:51-56; 8:62-67; 9:5-11.5

5 Google asserts that WSOU has “waived” identifying structure and algorithm in the alternative. 

Resp. at 8 (citing First-Class Monitoring LLC v. United Parcel Serv. of Am., Inc., 389 F. Supp. 3d 

456, 469 (E.D. Tex. 2019). This case is inapposite and dealt with briefing in an Alice motion, not 

Markman. The Robert Bosch case is also inapposite as it dealt with waiver during an appeal.

Case 6:20-cv-00571-ADA Document 40 Filed 02/26/21 Page 11 of 12
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Dated: February 26, 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 U.S. District Court [LIVE]- Document Filing System, to all counsel of record, on February 26,

2021.

/s/ James L. Etheridge

James L. Etheridge

Case 6:20-cv-00571-ADA Document 40 Filed 02/26/21 Page 12 of 12