IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES

Plaintiff,

v.

AT&T SERVICES INC., AT&T MOBILITY 

LLC, and AT&T CORP.

Defendant,

NOKIA OF AMERICA CORPORATION, 

ERICSSON INC.

Intervenors.

Case No. 2:23-cv-00202-JRG-RSP 

(Lead Case)

JURY TRIAL DEMANDED

PLAINTIFF XR COMMUNICATIONS, LLC’S CORRECTED

PARTIAL OBJECTION TO CLAIM CONSTRUCTION ORDER

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TABLE OF CONTENTS

I. U.S. Patent No. 7,177,369 (“’369 PATENT”) ........................................................1

A. “substantially reciprocal to” (’369 patent, claim 12)........................................1

II. U.S. Patent No. 8,289,939 (“’939 PATENT”) ........................................................1

A. “signal transmission/reception coordination logic” (’939 patent, claims 

15, 30)...............................................................................................................2

B. “restrain . . . responsive to the ascertaining . . .” (’939 patent claims 15, 

30).....................................................................................................................4

C. “The access point” (claims 20-21)....................................................................5

III. U.S. PATENT NO. 8,737,511 (“’511 PATENT”)..................................................5

A. “2nd Generation Partnership Project (3GPP) Long Term Evolution

(LTE), 3GPP LTE-Advanced, 3GPP LTE-TDD, 3GPP LTE-FDD” (’511 

patent, claims 2, 11)..........................................................................................5

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TABLE OF AUTHORITIES

Cases

Apex Inc. v. Raritan Comput., Inc., 

325 F.3d 1364 (Fed. Cir. 2003) .......................................................................................2

Dyfan LLC v. Target Corp.,

28 F.4th 1360 (Fed. Cir. 2022)........................................................................................2

Interval Licensing LLC v. AOL, Inc.,

766 F.3d 1364 (Fed. Cir. 2014) .......................................................................................1

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TABLE OF EXHIBITS TO ECF 81 (VIVATO’S OPENING MARKMAN BRIEF)

Exhibit Description Abbreviation

Exhibit 1 U.S. Patent No. 7,177,369 ’369 Patent

Exhibit 2 U.S. Patent No. 8,289,939 ’939 Patent

Exhibit 3 U.S. Patent No. 8,737,511 ’511 Patent

Exhibit 4 U.S. Patent No. 10,715,235 ’235 Patent

Exhibit 5 XR Communications LLC v. D-Link Systems, Inc. et al., Lead

Case Nos. 8:17-cv-596-DOC (Carter, J.) (D.I. 312 Order 

Adopting Special Master’s Report and Recommendations 

Regarding Claim Construction [D.I. 280])

CDCA Order 

Adopting 

R&R

Exhibit 6 XR Communications LLC v. D-Link Systems, Inc. et al., Lead

Case Nos. 8:17-cv-596-DOC (Carter, J.) (D.I. 280 Special 

Master’s Report and Recommendations Regarding Claim 

Construction) 

R&R

Exhibit 7 Claim Construction Order, XR Communications LLC v. Cisco 

Systems, Inc. et al., Samsung Electronics Co. Ltd. et al., 

Microsoft Corporation, Case Nos. 6:21-cv-623, 6:21-cv-626, 

6:21-cv-695 (W.D. Tex.) (Albright, J)

WDTX Order

Exhibit 8 IPR2024-00314, Petition for Inter Partes Review on U.S. 

Patent No. 7,177,369

’369 IPR 

Petition

Exhibit 9 IPR2024-00314, May 8, 2024 Response to POPR ’369 IPR 

Reply

Exhibit 10 IPR2024-00314, Ex. 2001 (The Authoritative Dictionary of 

IEEE Standards Terms, 7th ed., Dec. 2000) (excerpted).

’369 IPR Ex. 

2001

Exhibit 11 IPR2022-00958, Petition for Inter Parties Review on U.S. 

Patent No. 8,289,939

IPR2022-

00958

Exhibit 12 IPR2024-00314, Decision Denying Institution (July 15, 

2024)

’369 IPR 

Institution 

Decision

Exhibit 13 Excerpts of D.I. 256-5 in XR Communications LLC v. D-Link 

Systems, Inc. et al., Lead Case Nos. 8:17-cv-596-DOC 

(Carter, J.)

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Plaintiff XR Communications, LLC dba Vivato Technologies (“Plaintiff” or “Vivato”) 

respectfully objects in part to the Claim Construction Order (ECF 99) as set forth below. Vivato 

does not object to the Order’s constructions of “pre-equalization parameter” (’369 patent, cl. 1, 13, 

21, 32, 33, 41), “wireless input/output (I/O) unit” (‘939 patent, cl. 15, 30), “n multiple-input

multiple-output transceivers (MIMO)” (’511 patent, cl. 1, 10), “MIMO transmitter . . . ” / “MIMO 

receiver . . .” (’511 patent, cl. 1, 10, 20), or “transceiver” (’235 patent, cl. 1, 15, 18, 19).

I. U.S. PATENT NO. 7,177,369 (“’369 PATENT”)

A. “substantially reciprocal to” (’369 patent, claim 12)

The Court found the intrinsic record does not provide reasonable certainty on when the 

forward transmission path is “substantially reciprocal” to the reverse transmission path. Vivato 

objects. “Reciprocity” is a well-known property to describe paths in a wireless channel such as in 

Time Division Duplex (TDD) systems. Ex. 1 (’369 Patent), 7:21-34. The ’369 patent specification

describes “substantially reciprocal” as reciprocal for “a given moment in time between a base 

station device and a consumer premise equipment device.” Ex. 1 (’369 Patent), 2:13-16. The ’369 

patent also says that reciprocity is an assumption about the channel that POSITAs make about 

Time Division Duplex (TDD) systems for certain durations of time. Ex. 1 (’369 Patent), 10:61-

11:5 (“[i]f TDD is used, then the channel can be assumed to be reciprocal for durations (coherence 

time) of approximately 10 ms.”). The Court found that this is not an objective boundary, but the 

law does not require mathematical precision. This provides enough certainty that claim 12 is 

directed to a TDD system. “Claim language employing terms of degree has long been found 

definite where it provided enough certainty to one of skill in the art when read in the context of 

the invention.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370 (Fed. Cir. 2014).

II. U.S. PATENT NO. 8,289,939 (“’939 PATENT”)

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A. “signal transmission/reception coordination logic” (’939 patent, claims 15, 30)

Vivato objects to the Order finding this is means-plus-function; indeed, “[t]he Western 

District of Texas, however, concluded this is not a means-plus-function term.” ECF 99 at 22. The 

Order agrees the intrinsic record says to implement the logic in the baseband processing layer of a 

processing chip in a wireless routing device, but it holds that this does not indicate what the logic 

is and what structure it has. ECF 99 at 23-24. But the intrinsic record establishes a baseband signal 

processor as structure for the logic. And if any further information is needed, the claims and 

specification provide the necessary context, defining the inputs, outputs, and structural connections 

of the logic. The ’939 patent claims a “signal” logic that monitors access points for received 

signals and restrains signal transmission, which illustrates the inputs and outputs to a baseband 

signal processor chip or equivalent. The claims recite the inputs to the logic (“monitoring the 

plurality of access points for received signals”) and the output (“restrain[ing]” another access point 

from transmitting signal). See ’939 patent, cl. 15, 30; see id. 6:1-15. Similarly, Figure 4 depicts 

signal transmission/reception coordination logic 404 to “monitor the multiple access points 

402(1...N) to ascertain when a signal is being received” and to “restrain” signal transmissions on 

the access points—just as claimed. ’939 patent, 5:65-6:15, 6:16-53. The ’939 patent thus couples

“signal transmission/reception coordination logic” with “language describing its operation,” an 

even narrower and clearer structure than “code” found to be structural in the Dyfan case, or 

“circuit” found structural in the Apex case. Dyfan LLC v. Target Corp., 28 F.4th 1360, 1367 (Fed. 

Cir. 2022) (reversing § 112 ¶6 for terms “code” and “application” which could be implemented 

using “off-the-shelf” software); Apex Inc. v. Raritan Comput., Inc., 325 F.3d 1364, 1373 (Fed. Cir. 

2003) (“circuit” connotes structure and is not §112(6)) (cited with approval in Dyfan).

In reaching step two, the Central District of California found corresponding structure is 

“signal transmission/coordination logic 404” and “MAC coordinator logic 606” having 

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characteristics and configuration set forth in the specification. Ex. 5 (CDCA Order) at 8-10. Those 

corresponding structures are clearly linked to the claimed functions. Id. Vivato believes that the 

Central District of California’s construction is required by the law mandating that a means-plusfunction term cover all corresponding structure linked to the claimed functions. Here, Vivato 

objects to the Court’s Order insofar as the Order finds that the Figures 3-6 and accompanying text 

fail to disclose corresponding structure clearly linked to the recited functions. Vivato submits that 

these embodiments are clearly linked to the recited functions and disclose corresponding structure, 

including “signal transmission/reception coordination logic 404” which is a term that a person of 

ordinary skill in the art understands as a structure, especially in light of the text accompanying 

Figures 3-6 showing the processing circuitry in the access station as signal logic 404 structure 

within the wireless input/output unit structure in Figure 4, or as MAC logic 606 in Figure 6. In 

addition, Vivato submits that Figure 5 embodiment and the accompanying text which closely 

mirrors the claim language together disclose sufficient structure for the logic by reciting the inputs, 

outputs, structural connections, and operation of the logic. ’939 patent, 5:65-6:54. 

Separately, the Court’s Order finds that at least the Figure 7 and 12 embodiments to 

disclose an algorithm for performing the recited function. ECF 99 at 25-26 (“(1) accepting multiple 

receive indicators from multiple BB units; (2) determining whether an affirmative signal reception 

indicator from a BB unit is detected in the indicators; (3) providing instructions to the MACs that 

are associated with any BB units for which an affirmative reception indicator is detected to restrain 

signal transmission.”); see ’939 Patent, 17:54-64. The Order finds that the corresponding structure 

is a general purpose processor programmed to implement these algorithmic steps, and equivalents 

thereof. An equivalent algorithm is also disclosed in the context of the Figure 13 embodiment, 

which recites the following corresponding structure/algorithm:

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Signal transmission/reception coordination logic 404 applies one 

or more coordination functions to the receive information accepted 

from RF parts 610(1, 2 . . . N). The resulting combined receive 

information is forwarded to BB units 608(1, 2 . . . K). Based on the

combined receive information, respective BB units 608(1, 2 . . . K) 

provide MAC primitives to associated respective MACs 604(1, 2, , 

, K). The MAC primitives can instruct the MACs 604(1, 2 ... K) 

with regard to whether a signal is being received and/or 

constructively received by a corresponding RF part 610 and 

emanation apparatus 1204 pair.

’939 patent, 18:45-55.

B. “restrain . . . responsive to the ascertaining . . .” (’939 patent claims 15, 30)

Vivato agrees with the “plain and ordinary meaning” construction and agrees that the 

“ascertaining” and “restraining” steps do not need to be contemporaneous. ECF 99 at 31. 

Defendants have argued that the “ascertaining” and “restraining” steps need to “happen at the same 

time.” ECF 99 at 28. The Court correctly rejected that position. ECF 99 at 31. 

Separately, the Court held that the “‘restraining’ must happen in response to the signal 

being received, and not what an access point is expecting to receive in the future.” ECF 99 at 31. 

The Court characterized Vivato’s position as in tension with the present tense “is receiving” 

language of the claims. However, Vivato maintains that the claim language at issue does not limit 

how an access point ascertains that a signal is being received. The specification explains that one 

embodiment of the claimed “restraining” involves ascertaining that the access point is receiving a 

signal because the access point is expecting an immediate response, and restraining transmission 

from another access point to avoid interference with the signal that the system knows the first 

access point is receiving. ’939 Patent, 17:18-32. The Order suggests that Claim 15 is inconsistent 

with this because “Claim 15 requires the ‘second signal’ to be ‘ongoing on a second channel,’ and 

its final limitation requires the restraining to prevent degradation to the first and second signals, 

suggesting those signals are still being transmitted when the ‘restraining’ happens. ’939 Patent at 

20:45–47.” But Claim 30 recites no such limitations, and the doctrine of claim differentiation 

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forecloses importing into Claim 30 the additional limitations appearing only in Claim 15. Beyond 

claim 15, the Order also points to the specification’s description of a “signal” as a “e.g. packet” at 

col. 1:30. But the term “signal” carries its full plain and ordinary meaning, and the specification 

does not define “signal” as exclusively a “packet.” See ’939 Patent 4:20-36 (identifying “signals 

(e.g., wireless communication(s) 106 (of FIG. 1))”), 9:46-59 (identifying “the receive indicators 

may comprise indications of signal reception based on energy signals, cross-correlation signals, 

data signals, other transmit and/or control signals, some combination thereof, and so forth.”), 13:4-

9 (describing a “large interferer emanating an appropriate signal for a sufficiently long duration”). 

It does say that the regularity or frequency of receptions can be used as one way to ascertain when 

an access point is receiving a signal, such as a signal that is recurring. ’939 Patent, 13:34-64.

C. “The access point” (claims 20-21)

Vivato objects; “the access point” refers to “the first access point” and is not indefinite. 

III. U.S. PATENT NO. 8,737,511 (“’511 PATENT”)

A. “2nd Generation Partnership Project (3GPP) Long Term Evolution (LTE), 3GPP 

LTE-Advanced, 3GPP LTE-TDD, 3GPP LTE-FDD” (’511 patent, claims 2, 11)

Vivato objects to the insertion of “that existed at the time of the invention” as it adds 

unnecessary confusion. Interpreting the claim to have the meaning it had at the time of filing does 

not merit an “at the time of the invention” construction here, because the meaning of these terms 

at the time of filing was a reference to body of 3GPP standards known to be updated over time. 

The Court should hold that claims 2 and 11 can be infringed by a 3GPP standard that existed at 

the time of the invention even if that standard has been updated over time. ’511 Patent at 3:30-47. 

Dated: November 29, 2024 Respectfully submitted,

/s/ Reza Mirzaie 

Marc Fenster

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CA State Bar No. 181067

Reza Mirzaie

CA State Bar No. 246953

Adam Hoffman

CA State Bar No. 218740

Neil A. Rubin

CA State Bar No. 250761

James Pickens

CA State Bar No. 307474

Christian W. Conkle

CA State Bar No. 306374

Philip Wang

CA State Bar No. 262239

Minna Jay

CA State Bar No. 305941

Paul Kroeger

CA State Bar No. 229074

RUSS AUGUST & KABAT

12424 Wilshire Blvd. 12th Floor

Los Angeles, CA 90025

Telephone: 310-826-7474

rak_vivato@raklaw.com 

Andrea L. Fair

TX State Bar No. 24078488 

MILLER FAIR HENRY 

PLLC

1507 Bill Owens Parkway 

Longview, Texas 75604 

Telephone: 903-757-6400 

andrea@millerfairhenry.com

Attorneys for Plaintiff,

XR Communications, LLC,

dba Vivato Technologies

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CERTIFICATE OF SERVICE

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

electronic service are being served on November 29, 2024, with a copy of this document 

via the Court’s ECF system.

/s/ Reza Mirzaie

Reza Mirzaie 

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