IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

ACTIVE WIRELESS TECHNOLOGIES 

LLC,

Plaintiff,

v. 

T-MOBILE USA, INC. and T-MOBILE US, 

INC.,

Defendants,

ERICSSON INC. and NOKIA OF 

AMERICA CORPORATION,

Intervenors. 

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Case No. 2:23-cv-00261-JRG

JURY TRIAL DEMANDED

ACTIVE WIRELESS TECHNOLOGIES LLC’S

OPENING CLAIM CONSTRUCTION BRIEF

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TABLE OF CONTENTS

Page(s)

I. INTRODUCTION .............................................................................................................. 1

II. CLAIM CONSTRUCTION STANDARD OF REVIEW .................................................. 1

III. LEVEL OF ORDINARY SKILL IN THE ART ................................................................ 1

IV. DISPUTED CLAIM TERMS ............................................................................................. 2

A. ’557 Patent .............................................................................................................. 2

1. Term 1: “a parameter associated with a condition for determination 

of a failure” (Claims 9, 13, ’557 Patent”) ................................................... 2

2. Term 2: “wherein: the first type SIB is re-acquired by the user 

equipment upon the user equipment failing on the SI message 

acquisition process in at least one of the SI windows to receive the 

SI message” (Claims 9, 13, ’557 Patent”)................................................... 8

B. ’566 Patent ............................................................................................................ 12

1. Term 3: “the frequency hopping” (Claims 8, 16, ’566 Patent”) ............... 12

V. CONCLUSION ................................................................................................................. 16

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TABLE OF AUTHORITIES

 Page(s) 

Cases

AGIS Software Dev., LLC v. Huawei Device USA Inc., 

No. 2:17-cv-513-JRG, 2018 WL 4908169 (E.D. Tex. Oct. 10, 2018) ......................................1

Apple, Inc. v. Ameranth, Inc., 

842 F.3d 1229 (Fed. Cir. 2016)..................................................................................................2

Bose Corp. v. JBL, Inc., 

274 F.3d 1354 (Fed. Cir. 2001)................................................................................................12

Energizer Holdings, Inc. v. Int'l Trade Comm'n, 

435 F.3d 1366 (Fed. Cir. 2006)................................................................................................12

MasterMine Software, Inc. v. Microsoft Corp., 

874 F.3d 1307 (Fed. Cir. 2017)..............................................................................................8, 9

Merck & Co. v. Teva Pharms. USA, Inc., 

395 F.3d 1364 (Fed. Cir. 2005)..................................................................................................2

Microprocessor Enhancement Corp. v. Texas Instruments Inc., 

520 F.3d 1367 (Fed. Cir. 2008)..............................................................................................8, 9

Phillips v. AWH Corp., 

415 F.3d 1303 ..........................................................................................................................15

Seoul Semiconductor Co. v. Nichia Corp., 

596 F. Supp. 2d 1005 (E.D. Tex. 2009) .....................................................................................1

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

816 F.3d 816 (Fed. Cir. 2016)....................................................................................................9

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I. INTRODUCTION

Pursuant to P.R. 4-5(a) and the Court’s First Amended Docket Control Order of June 14, 

2024 (Dkt. 33), Plaintiff Active Wireless Technologies LLC (“AWT”) hereby submits its Opening 

Claim Construction Brief. The asserted patents are U.S. Patent Nos. 10,531,443 (the “’443 Patent,” 

Ex. A), 11,019,557 (the “’557 Patent,” Ex. B), 10,785,764 (the “’764 Patent,” Ex. C), and 

10,601,566 (the “’566 Patent,” Ex. D) (together, the “Asserted Patents”). This brief is supported 

by the expert Declaration of Mr. Regis (Bud) Bates. Ex. E, Declaration of Mr. Regis (Bud) Bates

Regarding Claim Construction.

II. CLAIM CONSTRUCTION STANDARD OF REVIEW

The governing legal standards relating to claim construction are described in the Court’s 

opinion in AGIS Software Dev., LLC v. Huawei Device USA Inc., No. 2:17-cv-513-JRG, 2018 

WL 4908169, at *3-*5 (E.D. Tex. Oct. 10, 2018) and are hereby incorporated by reference. See 

also Seoul Semiconductor Co. v. Nichia Corp., 596 F. Supp. 2d 1005 (E.D. Tex. 2009).

III. LEVEL OF ORDINARY SKILL IN THE ART

For this case, the relevant time period for interpreting the claims of the Asserted Patents is 

June 15, 2017 for the ’443 Patent, the date being the filing date of its provisional application No. 

62/520,520; May 10, 2018 for the ’557 Patent, the filing date of its provisional application No. 

62/669,851; August 11, 2016 for the ’764 Patent, the filing date of the earliest application, Chinese 

Patent Application 2016 1 0658544; and August 10, 2017 for the ’566 Patent, the filing date of its 

provisional application No. 62/543,795.

Plaintiff proposes that the person of ordinary skill in the art (“POSITA”) would have (1) a 

Bachelor of Science degree or equivalent degree in electrical engineering or computer science / 

engineering or software technologies and (2) at least two years of industry experience in wireless 

cellular communications, internet protocols, and/or communications networking technology. A

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person could also have qualified as a POSITA with some combination of (1) more formal 

education (such as Master of Science degrees) and less technical experience, or (2) less formal 

education and more technical or professional experience in the fields listed above. 

Plaintiff’s expert, Mr. Regis (Bud) Bates is considered to be a POSITA at the time of the 

invention(s), and Mr. Bates has submitted an expert declaration regarding certain claim 

constructions from the viewpoint of a person of ordinary skill in the art. See generally Ex. E. 

IV. DISPUTED CLAIM TERMS

A. ’557 Patent

1. Term 1: “a parameter associated with a condition for 

determination of a failure” (Claims 9, 13, ’557 Patent”)

AWT’s Proposed Construction Defendants’/Intervenors’ Proposed 

Construction

Plain and ordinary meaning. “a parameter used by the UE to determine 

that it has failed in the SI message 

acquisition process”

This limitation should be construed according to its plain and ordinary meaning. 

Defendants do not dispute whether the meaning of “a parameter” and “determination of a failure” 

should be subject to its plain and ordinary meaning since they use the same words “a parameter” 

and “determine that it has failed” in their proposed construction. Rather, Defendants’ proposed 

construction of the term improperly reads the claimed “condition” out of the claim term, which a 

POSITA would understand as changing the meaning of the claim. Ex. E, § V, ¶ 32. “Claim 

constructions [should] give meaning to all of a claim’s terms” but Defendants can provide no 

reasoning for reading out the “condition” language from this claim term. See Apple, Inc. v. 

Ameranth, Inc., 842 F.3d 1229, 1237 (Fed. Cir. 2016) (citing Merck & Co. v. Teva Pharms. USA, 

Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005)). 

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The ’557 Patent specification supports Plaintiff’s understanding that this term requires at 

least both a parameter and a condition for determination of failure. Ex. E, § V, ¶ 32. In particular, 

the overall claim language states that “the first type SIB [system information block] 

compris[es]:...a parameter associated with a condition for determination of a failure of an SI 

message acquisition process” and the specification describes “a configuration parameter to 

configure at least one termination condition for determination of a failure of an SI message 

acquisition process.” Id. (citing Ex. B, 14:21-23, 19:37-45 (“the first type system information 

comprises (information elements or the like which indicate): availability of second type SI 

messages; scheduling information of each of the SI messages; a delivery mode for each of the 

second type SI messages; and, a configuration parameter to configure at least one termination 

condition for determination of a failure of an SI message acquisition process for the on-demand 

based second type SI messages.”), 21:36-40 (“The first type system information comprises, e.g., 

configuration parameters to configure for at least one termination condition for determination of a 

failure of an SI message acquisition process.”), 26:41-43, 27:10-12, 29:14-16, 29:62-64). 

As shown in Figure 22, reproduced below, such “configuration parameters for at least one 

termination condition for determination of a failure of an SI message acquisition process” are 

included in the transmitted first type system information (SI) from the base station:

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Id., ¶ 33 (citing Ex. B, Fig. 22). 

Specific “termination condition parameters” are disclosed in Figs. 13A-13D, which 

indicate that the parameters are associated with conditions and the parameters are not themselves 

directly or solely used to determine failure of an SI message acquisition process, as Defendants’ 

proposed construction insinuates. Id., ¶ 34 (citing Ex. B, 3:50-52 (“Figures 13A-13D are 

diagrammatic view of differing implementations of SIB1 which comprises termination condition 

parameters.”)).

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Id. (citing Ex. B, Fig. 13A).

Id. (citing Ex. B, Fig. 13B).

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Id. (citing Ex. B, Fig. 13C).

Id. (citing Ex. B, Fig. 13D).

Similarly, the specification contains a separate figure related to “different termination 

conditions for different SI messages,” indicating that the parameters and the conditions themselves 

are associated but are otherwise two separate concepts:

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Id., ¶ 35 (citing Ex. B, Figs. 18A-18B, 4:3-6 (“FIG. 18A is a diagrammatic view showing a 

common termination condition for plural SI messages. FIG. 18B is a diagrammatic view showing 

different termination conditions for different SI messages.”)).

Plaintiff’s expert also testified, giving an example of how a POSITA would understand the 

distinction between the claimed parameter, condition, and determination of failure, as follows:

Q. And it is your opinion, then, that a determination of a failure of 

an SI message acquisition process is something different than a 

condition, correct?

A. Correct. The parameter tells us what the specification or what the 

rules are. The condition is what is occurring at this time. If, in fact, 

we exceed the number of counters or the timers or whatever, then a 

determination is made that we have had a failure. And at that point 

in time, we must rebroadcast.

Ex. F, Bates Dep., 56:9-20, July 16, 2024. Specifically, Mr. Bates testified that a POSITA would 

have understood that (i) parameters define or specify the rules; (ii) a condition is what is actually 

occurring (i.e., the number of counters or timers); and (iii)for example, the claimed “parameter 

associated with a condition” may be whether a certain number of counters or timers are exceeded

that would determine whether failure occurred. Id.

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Therefore, a POSITA reading the specification and the claims would understand that the 

claim requires a “condition for determination of a failure.” Ex. E, § V, ¶ 36. To completely read 

out the “condition” limitation, as Defendants’ proposed construction does, is both improper and 

would not provide a clear understanding of the implementation of the claimed invention. Id. Thus, 

this term should be afforded its plain and ordinary meaning. Id.

2. Term 2: “wherein: the first type SIB is re-acquired by the user 

equipment upon the user equipment failing on the SI message 

acquisition process in at least one of the SI windows to receive 

the SI message” (Claims 9, 13, ’557 Patent”)

AWT’s Proposed Construction Defendants’/Intervenors’ Proposed 

Construction

Plain and ordinary meaning. Indefinite under § 112(b)

This claim term is present in both Claims 9 and 13 of the ’557 Patent. A POSITA would 

find it evident that Claim 9 is an apparatus claim, which recites a “base station apparatus” while 

Claim 13 is a method claim, which recites a “method for a base station apparatus.” Id., ¶ 38. 

Nonetheless, while Plaintiff contends that it should be construed under the term’s plain and 

ordinary meaning, Defendants contend that this term should be construed as indefinite under 

§ 112(b) as improperly mixing claim types. 

That Claim 9 recites functional language that further describes the re-acquisition of the first 

type SIB (i.e., “the first type SIB is re-acquired by the user equipment upon the user equipment 

failing on the SI message acquisition process in at least one of the SI windows to receive the SI 

message”) is of no moment because “apparatus claims are not necessarily indefinite for using 

functional language.” Microprocessor Enhancement Corp. v. Texas Instruments Inc., 520 F.3d 

1367, 1375 (Fed. Cir. 2008). Claims are definite when they merely claim that the system 

‘possess[es] the recited structure [which is] capable of performing the recited functions.’” 

MasterMine Software, Inc. v. Microsoft Corp., 874 F.3d 1307, 1316 (Fed. Cir. 2017) (quoting 

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Microprocessor Enhancement Corp., 520 F.3d at 1375 (alteration in original). Here, the claims 

directly specify the recited structure, which Defendants do not contest. Defendants also do not 

request a construction that the functional language is non-limiting and do not contend that a 

POSITA would not understand the claim language with reasonable certainty.

As the Federal Circuit noted in MasterMine Software, simply including verbs does not 

necessarily render a system claim indefinite as long as those “verbs represent permissible 

functional language used to describe capabilities of the [system limitation].” Id. Claim 9 explicitly 

recites “transmitting circuitry configured to transmit a first type system information block (SIB).”

Ex. E, § V, ¶ 39. There is a subsequent claim limitation that further describes “the first type SIB” 

of the “transmitting circuitry” claim limitation. Id. A further description of “the first type SIB” 

disclosed in the “transmitting circuitry” claim limitation does not provide any confusion as to 

whether Claim 9 is an apparatus claim or whether the transmitting circuitry transmits an SIB for 

both acquisition or re-acquisition of the SIB at the user equipment. Id. Therefore, this term of 

Claim 9 simply further defines the capability of the claimed system’s transmitting circuitry

structure, which does not automatically result in a mixed-method-apparatus claim. See 

UltimatePointer, L.L.C. v. Nintendo Co., 816 F.3d 816, 827 (Fed. Cir. 2016) (“Unlike IPXL and 

similar cases, the claims at issue here make clear that the ‘generating data’ limitation reflects the 

capability of that structure rather than the activities of the user.”).

The specification confirms this understanding that the base station’s transmitting circuitry 

merely transmits the SIB again during a reacquisition process because a POSITA would have 

understood the use of the parenthetical “(re)” to indicate that the acquisition of the SIB involves 

the same transmission process with the same components, but merely in a different context (e.g., 

re-transmitting SIB upon detection of failure of the SI message acquisition process):

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Upon detection of failure of the SI message acquisition process, as 

act 14-4 the terminal processor 40 initiates (re)acquisition of the 

first type system information, e.g., the MINIMAL SI or SIB1, as 

shown by arrow 12-4 in FIG. 12. The wireless terminal 26(12) thus 

attempts to again acquire the first type system information, in hopes 

that the SI message acquisition process can thereafter be repeated 

and perhaps in such repeat of the SI message acquisition process the 

requested SI message will be obtained. In an example 

implementation, the wireless terminal 26(12) may optionally 

reacquire MIB prior to reacquisition of SIB1. Accordingly, not 

having a valid version of a stored SIB, upon detection of failure of 

the SI message acquisition process, the terminal processor

40 initiates (re)acquisition of the first type system information.

Ex. E, § V, ¶ 40 (citing Ex. B, 15:47-61).

Claim 9 also recites that “the base station apparatus is a current serving access node of the 

user equipment.” Id., ¶ 41. As indicated in Fig. 14 below, a POSITA would have understood that 

the same “access node” (i.e., base station apparatus) and transmitting circuitry therein would have 

both transmitted the initial SIB1, as well as SIB1 for the purposes of UE reacquisition: 

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Id. (citing Ex. B, Fig. 14).

Claim 13, the corresponding method claim to Claim 9, similarly describes “transmitting a 

first type system information block (SIB),” “wherein the first type SIB is re-acquired by the user 

equipment upon the user equipment failing on the SI message acquisition process in at least one 

of the SI windows to receive the SI message.” Id., ¶ 42. For the same reasons as Claim 9, the 

further description of “the first type SIB” from the “transmitting” claim limitation does not provide 

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any confusion as to whether Claim 13 is a method claim. Id.

For the reasons above, a POSITA would have understood that the scope of “wherein: the 

first type SIB is re-acquired by the user equipment upon the user equipment failing on the SI 

message acquisition process in at least one of the SI windows to receive the SI message” is

reasonably ascertainable without the need for further construction. Id., ¶ 43. Therefore, the term 

should receive its plain and ordinary meaning because when “[t]he scope of a claim would be 

reasonably ascertainable by those skilled in the art, then the claim is not indefinite.” Bose Corp. v. 

JBL, Inc., 274 F.3d 1354, 1359 (Fed. Cir. 2001). 

B. ’566 Patent 

1. Term 3: “the frequency hopping” (Claims 8, 16, ’566 Patent”)

AWT’s Proposed Construction Defendants’/Intervenors’ Proposed 

Construction

[a] frequency hopping Indefinite under § 112(b)

While Defendants contend that the recitation of “the frequency hopping” renders this claim 

term indefinite for lack of antecedent basis, a POSITA would understand the scope of this term 

with reasonable certainty without the need for further construction. The use of “the” does not 

render this claim indefinite because if “[t]he scope of a claim would be reasonably ascertainable 

by those skilled in the art, then the claim is not indefinite.” Bose Corp., 274 F.3d at 1359; see also

Energizer Holdings, Inc. v. Int'l Trade Comm'n, 435 F.3d 1366, 1371 (Fed. Cir. 2006) (“A claim 

that is amenable to construction is not invalid on the ground of indefiniteness.”). 

Claim 1 of the ’566 Patent is an apparatus claim directed toward a “user equipment (UE)” 

that includes “instructions stored in [] memory [that are] executable to” “determine a method of 

frequency hopping for the configured multiple slots PUCCH” and “transmit[ting] uplink control 

information (UCI) with the frequency hopping.” Ex. E, § V, ¶ 47; Ex. D, Claim 1. Claim 1’s 

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recitation of “a method of frequency hopping” implies that there is frequency hopping inherent in 

the claimed invention and the apparatus of Claim 1 is merely determining the precise method of 

the frequency hopping. A POSITA would have understood that Claim 8’s recitation of “receiv[ing] 

uplink control information (UCI) with the frequency hopping for the configured multiple slots 

PUCCH” is consistent with the determination of a method of frequency hopping in Claim 1, and 

specifically corresponds to the UE’s transmission of UCI with frequency hopping, as described in 

Claim 1. Ex. E, § V, ¶ 47.

However, even without Claim 1, a POSITA would have readily understood that Claim 8 

covers the embodiments of the ’566 Patent where a base station receives UCI from a UE with a

frequency hopping method, as per the explicit claim limitation of “receiv[ing] uplink control 

information (UCI) with [] frequency hopping for the configured multiple slots PUCCH.” Id. Claim 

8 itself recites that “an uplink control channel (PUCCH) spans over multiple slots” and “receive 

uplink control information (UCI) with the frequency hopping for the configured multiple slots 

PUCCH,” indicating unequivocally that frequency hopping is configured. Id., ¶ 45; Ex. D, Claim 

8 (emphasis added). 

A POSITA would have understood the term “frequency hopping” as used in Claim 8, to be 

inherent in the configured multiple slots PUCCH, regardless of whether “the” precedes “frequency 

hopping” in the claim. Ex. E, § V, ¶ 45. As Plaintiff’s expert explained, a POSITA would 

understand that “[d]uring the process of communications we have a certain amount of bandwidth 

and that bandwidth we typically break down into subsets [or] channels in different frequencies.” 

Ex. F, 29:22-30:1. “[F]requency hopping was done so that we could hop from one frequency to 

another either because it was a better channel to transmit on, or because we had additional capacity 

we needed and we could hop to a wider bandwidth.” Id., 30:5-9. In other words, “[f]requency hop 

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would be the actual hopping between the frequencies,” which the parties do not seem to dispute.

Id., 30:21-22. A POSITA would certainly have this understanding because frequency hopping “has 

been pretty much inherent in all of our latest and greatest technologies, and this dates back even 

back to before the 2G series” and is “inherent [] in our cellular networks.” Id., 30:2-17. 

The ’566 Patent specification confirms that frequency hopping is inherent when different 

PUCCH regions are configured. Ex. E, § V, ¶ 46. While DMRS (demodulation reference signal) 

patterns may (or may not) be used to determine whether frequency hopping can be supported (i.e., 

whether there are different frequencies to hop to), the specification makes clear that the ’566 Patent 

claims those embodiments which do support frequency hopping, because “[f]requency hopping is 

a key feature for PUCCH to provide frequency diversity”:

Frequency hopping is a key feature for PUCCH to provide 

frequency diversity. If configured, the PUCCH symbols can be 

transmitted at different PUCCH regions. For a long PUCCH 

duration in a slot, only 1 hop is supported. Whether frequency 

hopping can be supported or not may be determined by the DMRS 

patterns, and vice versa.

Id. (citing Ex. D, 17:5-10).

Moreover, the ’566 Patent specification is replete with references to frequency hopping, 

and specifically to frequency hopping related to uplink control information (UCI) spanning over 

multiple slots received from a base station’s perspective. Id., ¶ 48. For example, as described 

below, a POSITA would clearly understand that a frequency hopping of the received UCI spanning 

multiple slots (PUCCH) is inherent in view of the base station’s ability to receive UCI from a UE 

with a frequency hopping (as noted above), as well as the base station’s ability to “determine a 

frequency hopping method of the configured multi-slot PUCCH” from that received UCI: 

A base station (gNB) is also described. The gNB includes a 

processor and memory in electronic communication with the 

processor. Instructions stored in the memory are executable to 

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determine an uplink control channel (PUCCH) spans over multiple 

slots. The instructions are also executable to determine a 

demodulation reference signals (DMRS) structure in the configured 

multi-slot PUCCH. The instructions are further executable to 

determine a frequency hopping method of the configured multi-slot 

PUCCH. The instructions are additionally executable to determine 

UCI encoding and loading methods on the configured multi-slot 

PUCCH. The instructions are also executable to determine a 

resource of a control channel for UCI feedback. The instructions are 

further executable to receive UCI on a selected channel.

Id. (citing Ex. D, 3:38-51). 

Because a POSITA would have understood that it is evident from Claim 8 that frequency 

hopping is an inherent feature of the claimed invention and would have been readily able to define 

“frequency hopping” as written in the claim, a POSITA would not have required antecedent basis 

of “frequency hopping” earlier in Claim 8 to understand the recited “the frequency hopping.” Id.

Claim 16 is the corresponding method claim to Claim 8 and, therefore, the same reasons 

above as to why a POSITA would understand “the frequency hopping” to be construed as

“frequency hopping” or “a frequency hopping” apply to Claim 16. Id., ¶ 49.

As shown above, the context in which this claim term appears both in the claim language 

and the specification allows a POSITA to understand the scope of this claim term. Defendants 

have not presented any intrinsic or extrinsic evidence indicating that the term “frequency hopping” 

itself is indefinite outside of its non-persuasive antecedent basis challenge. Accordingly, “the 

frequency hopping” is sufficiently definite in view of the claims and specification. See Phillips v. 

AWH Corp., 415 F.3d 1303, 1321 (“[T]he specification is ‘the single best guide to the meaning of 

a disputed term,’ and that the specification ‘acts a dictionary when it expressly defines terms used 

in the claims or when it defines terms by implication.’”).

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V. CONCLUSION

For all the foregoing reasons, AWT respectfully requests that the Court adopt AWT’s

proposed constructions. 

Dated: August 5, 2024 Respectfully submitted, 

/s/ Vincent J. Rubino, III 

Alfred R. Fabricant

NY Bar No. 2219392 

Email: ffabricant@fabricantllp.com

Peter Lambrianakos

NY Bar No. 2894392 

Email: plambrianakos@fabricantllp.com 

Vincent J. Rubino, III 

NY Bar No. 4557435 

Email: vrubino@fabricantllp.com 

FABRICANT LLP

411 Theodore Fremd Avenue, 

Suite 206 South 

Rye, New York 10580 

Telephone: (212) 257-5797 

Facsimile: (212) 257-5796 

Charles Everingham IV 

Email: ce@wsfirm.com 

TX Bar No. 00787447 

Andrea L. Fair

TX Bar No. 24078488 

Email: andrea@wsfirm.com

WARD, SMITH & HILL, PLLC

PO Box 1231 

Longview, Texas 75606-1231 

Telephone: (903) 757-6400 

Facsimile: (903) 757-2323 

ATTORNEYS FOR PLAINTIFF

ACTIVE WIRELESS TECHNOLOGIES LLC

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s 

CM/ECF system per Local Rule CV-5(a)(3) on August 5, 2024. 

/s/ Vincent J. Rubino, III 

 Vincent J. Rubino, III

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