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

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES,

Plaintiff,

v.

VERIZON COMMUNICATIONS, INC. and 

CELLCO PARTNERSHIP D/B/A VERIZON 

WIRELESS.

Defendants,

NOKIA OF AMERICA CORPORATION, 

ERICSSON INC.

Intervenors.

Case No. 2:23-cv-00203-JRG-RSP 

(Member Case)

JURY TRIAL DEMANDED

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES,

Plaintiff,

v.

T-MOBILE USA, INC.

Defendant,

NOKIA OF AMERICA CORPORATION, 

ERICSSON INC.

Intervenors.

Case No. 2:23-cv-00204-JRG-RSP 

(Member Case)

JURY TRIAL DEMANDED

PLAINTIFF XR COMMUNICATIONS, LLC’S

OPENING CLAIM CONSTRUCTION BRIEF

Case 2:23-cv-00202-JRG-RSP Document 81 Filed 07/15/24 Page 1 of 38 PageID #: 1598
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TABLE OF CONTENTS

I. Introduction................................................................................................................. 1

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

A. “forward path pre-equalization parameter” / “determining at least one 

forward path pre-equalization parameter based on said at least one 

transmission delay” / “modifying a forward path data signal that is to be 

transmitted to the receiving device based on said at least one forward 

path pre-equalization parameter” (’369 patent, claims 1, 13, 21, 32, 33, 

41) .....................................................................................................................1

B. “substantially reciprocal to” (’369 patent, claim 12) ........................................7

C. “a plurality of first device receive antennas” (’369 patent, claim 19) ..............9

III. U.S. Patent No. 8,289,939 (“’939 Patent”).............................................................. 10

A. Summary of the ’939 Patent............................................................................10

B. “wireless input/output (I/O) unit” (‘939 patent, claims 15, 30)......................10

i. Pre-AIA 35 USC. § 112 ¶ 6 is not applicable because this term 

recites sufficiently definite structure. ................................................... 11

ii. Even if the term is means-plus-function, it is not indefinite. ............... 14

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

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

i. Pre-AIA 35 USC. § 112 ¶ 6 is not applicable because this term 

recites sufficiently definite structure. ................................................... 16

ii. If means-plus-function treatment applies, this term is not indefinite... 19

D. “restrain . . . responsive to the ascertaining that the first access point is 

receiving the first signal and that the second access point is receiving the 

second signal that is ongoing-on the second channel” (’939 patent claim 

15) / “restrain . . . responsive to the ascertaining that the first access point

is receiving the first signal” (’939 patent claim 30)........................................23

E. “the access point” (939 patent, claims 20- 21, 33-34) ....................................27

IV. U.S. Patent No. 8,737,511 (“’511 Patent”).............................................................. 28

A. “n multiple-input multiple-output transceivers (MIMO)” (’511 patent, 

claims 1, 10) ....................................................................................................28

B. “MIMO transmitter ...” / “MIMO receiver ...” (’511 patent, claims 1, 

10, 20) .............................................................................................................29

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

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

patent, claims 2, 11) ........................................................................................30

V. U.S. Patent No. 10,715,235 (The ’235 Patent) ......................................................... 30

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A. “transceiver” (’235 patent, claims 1, 15, 18, 19) ............................................30

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TABLE OF AUTHORITIES

Cases

Apex, Inc. v. Raritan Comp., Inc.,

325 F.3d 1364 (Fed. Cir. 2003)......................................................................... 11, 16, 19

Dyfan, LLC v. Target Corp.,

28 F.4th 1360 (Fed. Cir. 2022) ................................................................... 11, 16, 18, 19

Huawei Tech. Co. Ltd. v. T-Mobile US, Inc.,

2017 WL 1376436 (E.D. Tex. 2017)............................................................................ 13

Interval Licensing LLC v. AOL, Inc.,

766 F.3d 1364 (Fed. Cir. 2014)....................................................................................... 7

Microsoft Corp. v. i4i Ltd. Partnership,

564 U.S. 91 (2011).......................................................................................................... 7

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

572 U.S. 898 (2014)........................................................................................................ 7

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

859 F.3d 1014 (Fed. Cir. 2017)..................................................................................... 12

Sonix Tech. Co. v. Publications Int’l, Ltd.,

844 F.3d 1370 (Fed. Cir. 2017)....................................................................................... 7

Telcordia Technologies, Inc. v. Cisco Systems, Inc.,

612 F.3d 1365 (Fed. Cir. 2010).................................................................................... 21

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

669 F.3d 1362 (Fed. Cir. 2012)............................................................................... 23, 28

VDPP LLC v. Vizio Inc., 

No. 2021 (Fed. Cir. Mar. 2022) .................................................................................... 19

VR Optics LLC v. Peloton Interactive, Inc.,

345 F. Supp. 3d 394 (S.D.N.Y. 2018) ......................................................................... 18

Williamson v. Citrix Online, LLC,

792 F.3d 1339 (Fed. Cir. 2015)............................................................................... 11, 16

WSOU Investments LLC v. Google LLC,

No. 2022-1063, 2023 WL 6889033 (Fed. Cir. Oct. 19, 2023)...................................... 17

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. 2022)......................... 17

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

Lead Case No. 8:17-cv-596-DOC (C.D. Cal. 2022)..................................................... 11

Case 2:23-cv-00202-JRG-RSP Document 81 Filed 07/15/24 Page 4 of 38 PageID #: 1601
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Zeroclick, LLC v. Apple Inc.,

891 F.3d 1003 (Fed. Cir. 2018)............................................................................... 11, 16

Other Authorities

35 U.S.C. § 112.......................................................................................................... passim

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TABLE OF EXHIBITS

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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I. INTRODUCTION

Plaintiff XR Communications, LLC, dba Vivato Technologies (“Vivato”) and Defendants1

offer very different approaches to claim construction. Defendants rely almost exclusively on 

revisionism. First, as they did in their IPR Petition, Defendants seek to re-define and read out the 

“pre-equalization” requirement in the ’369 patent. As the PTAB did, this Court should reject that 

and hold that the claim requires “pre-equalization.” Second, for the remaining ’369 patent terms, 

Defendants claim the terms are indefinite, but these terms are readily understood in the context of 

the terms’ respective intrinsic records. Third, Defendants seek to construe the ’939 patent in a 

manner contrary to the intrinsic record and to previous claim constructions from the Western 

District of Texas or the Central District of California. Defendants’ proposals should be rejected 

just as they were before. Finally, Defendants seek to construe terms in the ’511 and ’235 patents, 

like “transceiver,” which are readily understood by persons of ordinary skill in the wireless 

communications field of the inventions. No construction for such well-understood terms is needed.

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

A. “forward path pre-equalization parameter” / “determining at least one forward 

path pre-equalization parameter based on said at least one transmission delay” / 

“modifying a forward path data signal that is to be transmitted to the receiving 

device based on said at least one forward path pre-equalization parameter” (’369 

patent, claims 1, 13, 21, 32, 33, 41)

Term in Dispute Plaintiff’s Proposal Defendants’ 

Proposal

“forward path preequalization parameter” / 

“determining at least one 

forward path preequalization parameter based 

on said at least one 

transmission delay”

Plain and ordinary meaning, i.e., a preequalization parameter for modifying a 

forward path signal to reduce unwanted 

effects associated with multipath fading 

between the transmitter and the receiver 

that is determined based on said at least 

one multipath transmission delay.

Plain and ordinary 

meaning. 

1 For simplicity, “Defendants” refers collectively to Defendants and Intervenors.

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Term in Dispute Plaintiff’s Proposal Defendants’ 

Proposal

“modifying a forward path

data signal that is to be

transmitted to the receiving 

device based on said at least 

one forward path preequalization parameter”

Plain and ordinary meaning, wherein 

“pre-equalization” has its plain and 

ordinary meaning, i.e., modifying a 

signal to reduce unwanted effects 

associated with multipath fading between 

the transmitter and the receiver

The parties dispute whether claim 1 requires “pre-equalization” based on the “multipath

transmission delay,” i.e., whether the claimed “pre-equalization parameter” must be used for preequalization. A review of the intrinsic evidence confirms that it does. 

This dispute arose in concurrent IPR proceedings in IPR2024-00314. There, Defendants’

position was that pre-equalization isn’t a claim requirement and that that claim 1 can be met by a 

system that doesn’t perform pre-equalization at all. Defendants contended in the IPR that all that 

is required of “pre-equalization parameter” is to modify power levels for two OFDM tones. Ex. 92

at 1-2. As the Board held, this is inconsistent with overwhelming intrinsic evidence (including the 

’369 patent’s title, abstract, problem to be solved, claimed solution, and every embodiment). In its 

Decision Denying Institution, the Board rejected Defendant’s construction as inconsistent with the 

plain meaning of “pre-equalization.” Ex. 12 (’369 IPR Institution Decision) at 14-15 

(“Accordingly, we understand the term pre-equalization parameter to encompass a parameter used 

for pre-equalization, that is, to account for properties of a propagation path between a transmitter 

and a receiving device, where the parameter is based on at least one multipath transmission delay 

identified from a reverse path data signal received from the receiving device and where a forward 

path data signal is modified based on the parameter.”); 25 (“[F]irst and foremost, independent 

claim 1 requires the application of a pre-equalization parameter.”) (holding that the Petition fails 

2 Citation to exhibits are to the exhibits of the concurrently filed attorney declaration.

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to show how “Wong’s total power minimization process performs pre-equalization, so as to 

modify the transmission signal to account for the properties of the propagation paths between the 

base station and the receiver.”) (emphasis original). The Court should similarly reject Defendant’s 

proposal and clarify here that “pre-equalization parameter” in claim 1 requires a parameter used 

for pre-equalization based on the multipath transmission delay. 

The ’369 patent is titled “Multipath communication methods and apparatuses.” It teaches 

novel methods to (1) “characterize the multipath delays that may exist between communicating 

devices” and (2) use “pre-equalization techniques” to mitigate these multipath effects. Ex. 1 (’369 

Patent), Title, Abstract, Claim 1; see also col. 7:13-21. 

Claim 1 recites: [1a] “identifying at least one multipath transmission delay within a reverse 

path data signal received from a receiving device”; [1b] “determining at least one forward path preequalization parameter based on said at least one [multipath] 3 transmission delay” and [1c] 

“modifying a forward path data signal that is to be transmitted to the receiving device based on said 

at least one forward path pre-equalization parameter, where said modifying includes selectively 

setting different transmission power levels for at least two Orthogonal Frequency Division 

Multiplexing (OFDM) tones in said forward path data signal.” Id. at cl. 1. 

Under Plaintiff’s view, “pre-equalization” in [1c] has the same meaning that it has in [1b], 

requiring “pre-equalization” based on the “multipath transmission delay.” But in their IPR on the 

’369 Patent, Defendants argued in favor of broadening the scope of the claim to support their 

invalidity theories. Specifically, Defendants argued that when applying element [1c], it is 

permissible to disregard the claim language in elements [1a] and [1b] (requiring a pre-equalization 

3 The Parties agree that the phrase “said at least one transmission delay” means “the at least one 

multipath transmission delay” from the preceding claim element. See Joint Claim Construction 

Statement (Agreed Constructions).

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parameter based on said at least one multipath transmission delay) and interpret the term “preequalization” in claim [1c] to mean “selectively setting different transmission power levels,” and 

nothing more. Defendants argue that [1c] does not require pre-equalization and “pre-equalization 

parameter” is any “parameter” that sets different transmission power levels of OFDM tones:

The claim already recites that “pre-equalization” performs a very specific action 

(modifying the power levels for two OFDM tones before transmission). Thus, the 

claim language recites the complete usage chosen by the patentee to define the claim. 

Ex. 9, IPR2024-00314, May 8, 2024 Response to POPR, at 1-2. 

However, this fails. Defendants’ construction would read out of the claim and exclude from 

claim 1 the requirement for “pre-equalization” “based on said at least one [multipath] transmission 

delay.” Because all terms in elements [1a] and [1b] must be given effect, the “pre-equalization 

parameter” in [1c] must perform pre-equalization, consistent with its meaning in [1b]. Defendants’ 

construction is inconsistent with intrinsic evidence and a POSITA’s understanding. 

First, Defendants’ proposed construction is contradicted by the claim language of claim 1. 

Defendants contend “pre-equalization” means what is recited in [1c] after the “where said 

modifying includes” clause. But this disregards the claim language regarding pre-equalization,

including in [1b]. All words in the claim must be given effect. This is especially important where, 

as here, the words in [1b] explain the meaning of the term that appears in [1c]. These words confirm 

that “pre-equalization parameter” requires “pre-equalization” in the context of multipath 

transmission delay. There is no support for reading [1c] in a vacuum divorced from [1b]. 

Further, under Defendants’ view, the claim would have exactly the same scope if the term

“pre-equalization parameter” were replaced with “parameter,” allegedly because pre-equalization 

is fully captured by the language in [1c] relating to setting transmission power levels of OFDM 

tones. This is erroneous, and there is no basis to strip out substantive words of the claim. The term 

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“pre-equalization” is recited in the claim. It is recited as determined “based on said multipath 

transmission delay.” It is also recited as modifying a forward path signal. This language, read 

together, confirms that the term “pre-equalization” has meaning, and that its meaning is informed 

by the language in [1a] and [1b] which describes that the pre-equalization parameter is determined 

from and characterized by the multipath transmission delay. There is no support for defining “preequalization” based only on [1c] in a manner that is inconsistent with its meaning in [1b]. 

Second, the specification also supports that pre-equalization is a claim requirement, not a 

meaningless modifier to the term “parameter.” The specification describes pre-equalization as

“reduc[ing] unwanted effects associated with multipath fading between the transmitter and the 

receiver.” Ex. 1 (’369 Patent), Abstract, Claim 1, 7:13-21. There should be no dispute that the 

claimed “pre-equalization parameter” must be determined based on the multipath transmission 

delay and that it must pre-equalize based on this multipath delay. Ex. 1 (’369 Patent), Abstract, 

Claim 1, 7:13-21, 11:6-7 (describing “pre-equalize multipath delays”). Indeed, pre-equalization is 

presented as a key component of the invention. Id. 4:44-7:4 (discussing shortcomings with 

traditional techniques to deal with multipath propagation delays), 7:13-21 (introducing novel “preequalization technique” that “substantially reduces unwanted effects associated with multipath 

fading”). This is apparent from the patent’s title, abstract, problem to be solved, claimed solution, 

and every embodiment. See id. When the patent introduces the claimed inventions in col. 7, it 

states that in “the present invention,” “equalization techniques are provided for use at a 

transmitting node and configured to perform [multipath pre-equalization].” ’369 patent at 7:14–

21. And it states that the description applies to later examples and embodiments. Id. (“Such preequalization techniques are discussed in greater detail in later sections.”). Thus, every embodiment 

is consistent with the understanding that pre-equalization in claim 1 has meaning. 

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Third, that [1c] requires “pre-equalization” would be well understood from the plain 

meaning of “pre-equalization.” In IPR2024-00314, the Board found that, at a minimum, preequalization requires “accounting for properties of a propagation path.”4 Ex. 12 at 15. A POSITA 

further understands that pre-equalization requires reducing adverse effects. The IEEE dictionary 

defines pre-equalization (or pre-emphasis) as: “A process in a system designed to emphasize the 

magnitude of some frequency components with respect to the magnitude of others, to reduce 

adverse effects, such as noise, in subsequent parts of the system.” Ex. 10 (Excerpt from

Authoritative Dictionary of IEEE Standards Terms, 7th ed., Dec. 2000). As this makes clear, preequalization is about “reduc[ing] adverse effects, such as noise” and, thus, there can be different

types of adverse effects that are the object of the pre-equalization, depending on context. A

POSITA reading the ’369 Patent would understand from the contextual language of claim [1b] and 

col. 7:14-21 (“reduces unwanted effects associated with multipath fading”) that the claimed preequalization refers to accounting for multipath effects (as opposed to other types of effects). The 

discussion of pre-equalization in the ’369 patent closely tracks the IEEE definition, including the 

language of “to reduce adverse effects.” Ex. 1 (’369 patent) at 7:14–21. The ’369 patent read in 

light of the understanding of a POSITA confirms that pre-equalization retains its plain and ordinary

meaning. Ex. 1 (’369 patent) at 7:14–21, cl. 1.

Thus, “pre-equalization parameter” requires a parameter used for pre-equalization based 

on the multipath transmission delay. See Ex. 12 at 15 (claim 1 requires a “parameter used for preequalization, that is, to account for properties of a propagation path between a transmitter and a 

receiving device, where the parameter is based on at least one multipath transmission delay...and 

where a forward path data signal is modified based on the parameter.”), 25 (same). 

4 All emphasis is added, unless otherwise indicated as being from the original quotation. 

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

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and ordinary meaning Indefinite term of degree

The specification must “conclude with one or more claims particularly pointing out and 

distinctly claiming the subject matter which the applicant regards as [the] invention.” 35 U.S.C. 

§ 112 ¶ 2. In Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014), the Supreme 

Court “h[e]ld that a patent is invalid for indefiniteness if its claims, read in light of the specification 

delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those 

skilled in the art about the scope of the invention.” Definiteness is measured from the viewpoint 

of a POSITA at the time the patent was filed. Id. at 908. The party challenging the validity of the 

patent-in-suit bears the burden of proving indefiniteness by clear and convincing evidence. Id. at 

912 n.10 (citing Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91, 95 (2011)). 

But Defendants do not present any evidence that the scope of the claimed invention is 

uncertain. The Federal Circuit has explained that “[b]ecause language is limited, we have rejected 

the proposition that claims involving terms of degree are inherently indefinite.” Sonix Tech. Co. v. 

Publications Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017). “Thus, ‘a patentee need not define 

his invention with mathematical precision in order to comply with the definiteness requirement.’” 

Id. “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). In determining whether the 

patent has provided sufficient guidance for a term of degree, a reviewing court should “look to the 

written description for guidance.” Id. at 1371.

Here, the ’369 patent explains what “substantially reciprocal” means. Ex. 1 (’369 Patent), 

2:13-16, 7:21-34, 10:61-11:5, 11:62-66. In fact, as shown below, the term “substantially 

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reciprocal” is not a term of degree; rather, the “substantially” modifier is added to clarify that the 

channel need not be reciprocal for all times but rather only for a “given moment in time.” Id.

There can be no dispute that “reciprocal” would be well understood in this context. The 

’369 patent explains that channel “reciprocity” is a well-known property in wireless channels:

As is well known, many materials are electromagnetically isotropic, which is a 

property resulting from symmetry in their associated permittivity and permeability 

tensors. The Lorentz Reciprocity Theorem applies to such materials. Refraction and 

dielectric reflection from materials therefore often show reciprocity, or equivalence 

of forward and reverse channel characteristics. Diffraction and reflection are 

inherently reciprocal due to the minimal media affecting the electromagnetic wave. 

Thus, reciprocity can be used to determine channel characteristics that are used 

while pre-equalizing a transmitted path. The use of a reciprocal channel is very 

useful, for example, when Time Division Duplex (TDD) channels are implemented.

Ex. 1 (’369 Patent), 7:21-34.

It is well known that unlike reciprocal Time Domain Duplex (TDD) systems, channel reciprocity 

is “not available” for “Frequency Division Duplex” systems. Id. 16:17-22. 

Further, the ’369 patent explains that what is meant to persons of ordinary skill in the art 

by the term “substantially reciprocal” means that the channel is reciprocal not in an absolute sense

for all times, but rather that the channel only needs to be understood to be reciprocal for at least a 

“given moment in time between a base station device and a consumer premise equipment device.” 

Ex. 1 (’369 Patent), 2:13-16 (“Here, it is preferred that the reverse transmission path be 

substantially reciprocal to the forward transmission path, for example, at a given moment in time

between a base station device and a consumer premise equipment device.”). This language in 

column 2 confirms that “substantially reciprocal” means “at a given moment in time.” Id.

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Elaborating on this point, the ’369 patent explains that reciprocity is an assumption about 

the channel that persons of ordinary skill in the art make about Time Division Duplex (TDD) 

systems for certain durations of time. Ex. 1 (’369 Patent), 10:61-11:5. Here, the ’369 patent 

explains that “[i]f TDD is used, then the channel can be assumed to be reciprocal for durations 

(coherence time) of approximately 10 ms.” Id. 10:61-11:5. This confirms, consistent with column 

2, “substantially reciprocal” is not about the degree of reciprocity but to clarify that the reciprocity 

need only b applicable for a given moment or duration of time as opposed to for all times. 

C. “a plurality of first device receive antennas” (’369 patent, claim 19)

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and ordinary meaning Indefinite 

Claim 19 (which depends from claim 15) informs, with reasonable certainty, the scope of 

the invention. Claim 15 recites “using at least one transmitting device receive antenna operatively 

coupled to said transmitting device to receive said reverse path data signal over at least one reverse 

transmission path from the receiving device.” Claim 19 adds the limitation “wherein said 

transmitting device is operatively coupled to a plurality of first device receive antennas.” Thus, 

while claim 15 recites “at least one transmitting device receive antenna,” claim 19 adds the further

requirement that the “transmitting device” is “operatively coupled” to a “plurality of first device 

receive antennas.” A person having ordinary skill in the art would understand with reasonable 

certainty that while claim 15 could be satisfied by one receive antenna, claim 19 adds the 

requirement for a plurality of receive antennas. Finally, while claim 19 specifies “first device 

receive antennas” rather than “transmitting device receive antenna,” this does not render the scope 

of claim 19 indefinite. A POSITA would understand each of these words without a problem. 

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

A. Summary of the ’939 Patent

The ’939 patent is entitled “Signal communication coordination,” and claims priority to 

Provisional Patent Application Nos. 60/423,702 and 60/423,696, both filed on Nov. 4, 2002. The 

’939 Patent is in the field of wireless communications, including “WiFi” networks that operate in 

accordance with “IEEE 802.11” standards. It describes an exemplary access station for wireless 

communications that includes a wireless input/output unit that establishes a plurality of access 

points. The wireless input/output unit is a structure familiar to an ordinary artisan, including 

MACs, baseband units, radio frequency parts, an Ethernet switch/router, a beamformer, and an 

antenna array. ’939 Patent, 6:54-64. The wireless input/output unit is depicted in Figure 4 as 

containing a signal transmission/reception coordination logic that is adapted to “restrain 

transmission on a first channel with a first access point 402 even when receiving a wireless 

communication on a second different channel with a second access point 402.” Id. 6:22-54. 

B. “wireless input/output (I/O) unit” (‘939 patent, claims 15, 30)

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and ordinary meaning; 

not subject to means-plus-function treatment under 35 

U.S.C. § 112 (6). 

Alternative proposed construction, should the term be 

treated as a means-plus-function limitation: not 

indefinite. 

Function: Claims 15, and 30: establish a plurality of 

access points

Structure: Wireless input/output unit 206 and

equivalents thereof.

Means-plus-function under § 112, ¶ 6

and indefinite.

Function: establish a plurality of 

access points

Structure: none disclosed

The phrase “wireless input/output (I/O) unit” does not invoke § 112 ¶ 6. Alternatively, if 

the Court does construe this phrase as subject to § 112 ¶ 6, the term is not indefinite because the 

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structure that is clearly linked to the purported functions is set forth in the specification such that 

a POSITA would understand that structure with reasonable certainty. 

i. Pre-AIA 35 USC. § 112 ¶ 65 is not applicable because this term recites 

sufficiently definite structure.

“The failure to use the word ‘means’ creates a rebuttable presumption that § 112 ¶ 6 does 

not apply.” Zeroclick, LLC v. Apple Inc., 891 F.3d 1003, 1007 (Fed. Cir. 2018). This presumption 

cannot be overcome unless “the challenger demonstrates that the claim term fails to recite 

sufficiently definite structure or else recites function without reciting structure for performing that 

function.” Id. (emphasis in original) (quoting Williamson v. Citrix Online, LLC, 792 F.3d 1339, 

1348 (Fed. Cir. 2015)). “From a procedural standpoint, this presumption imposes on [Defendants] 

a burden of going forward with evidence to rebut ... the presumption.” Dyfan, LLC v. Target Corp., 

28 F.4th 1360, 1367 (Fed. Cir. 2022) (quoting Apex, Inc. v. Raritan Comp., Inc., 325 F.3d 1364, 

1372 (Fed. Cir. 2003)). 

Thus, to invoke § 112 ¶ 6, Defendants bear the burden of showing that “wireless 

input/output (I/O) unit” fails to “recite sufficiently definite structure” and recites “function without 

reciting sufficient structure for performing that function,” in light of the intrinsic record and 

extrinsic evidence presented. See Zeroclick, 891 F.3d at 1007. Defendants cannot meet this burden.

In XR Communications LLC v. D-Link Systems, Inc. et al., Lead Case No. 8:17-cv-596-

DOC (Carter, J.) (D.I. 312, Order Adopting Special Master’s Report and Recommendations 

Regarding Claim Construction [D.I. 280]), the Court for the U.S. District Court for the Central 

District of California construed the term “wireless input/output (I/O) unit” to have its plain and 

ordinary meaning and found that the accused infringers could not rebut the presumption that 35 

5 Pre-AIA Section 112 ¶ 6 applies here because the priority date of the ’939 patent pre-dates 

enactment of the America Invents Act.

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U.S.C. § 112 ¶6 does not apply. This Court should reach the same result. The Honorable Judge 

Carter’s Claim Construction Order (Ex. 5, D.I. 312) adopting the Special Master’s Report and 

Recommendations (Ex. 6, R&R) provides detailed reasons why 35 U.S.C. § 112 ¶ 6 does not apply 

to the term “wireless input/output (I/O) unit.” See Ex. 5, 6-8; Ex. 6, 40-43 (citing Ex. 13). 

The term “wireless input/output (I/O) unit” recites sufficiently definite structure and 

connotes structure considering the claims, specification, and knowledge of an ordinary artisan. 

First, the California Court correctly held that the claim term itself—wireless input/output unit—

connotes structure. Ex. 5 at 7, citing R&R at 40-43. The Court held that the modifier (wireless 

input/output (I/O)) connotes structure and is analogous to the “wireless device means” term found 

to connote structure in Skyy, Inc. v. MindGeek, s.a.r.l., 859 F.3d 1014 (Fed. Cir. 2017). The 

California Court observed that in Skyy, the claim term recited “wireless device means” and thus 

was presumed to be means-plus-function, but the Federal Circuit still found that the modifier 

“wireless device” carried sufficiently strong structural connotations to overcome the presumption. 

Ex. 5 at 7-8, citing Ex. 6 (R&R) at 43. In the present case, the term at issue (wireless input/output 

unit) does not use “means” and is therefore presumed not to be means-plus-function, so the analysis 

in Skyy applies “with even greater force in the present case, particularly in light of the above-cited 

disclosure in the specification [at 4:17-23].” Ex. 6 at 43. The Special Master also credited the 

expert testimony that the term “wireless I/O unit” in the claims is a known structure, crediting the 

opinions of Plaintiff’s expert as “further persuasive in this regard. (See Pl. CC Opening, Ex. 4, 

Nov. 2, 2021 Vojcic decl. at ¶¶107-117.)” Id. (citing Ex. 13). The Court agreed and adopted the 

Special Master’s recommendation that the term connotes structure. Ex. 5 (CDCA Order) at 7-8.

Second, the California Court also held this term connotes structure in the specification: 

Finally, the specification confirms that the term “wireless input/output (I/O) unit” 

connotes structure because as noted in the R&R, “the specification refers to a 

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wireless I/O unit as including structures and as being part of a structure.” R&R at 

42 (citing ’939 Patent at 4:17–23 (“[a]ccess station 102 includes wireless I/O unit 

206”; “[w]ireless I/O unit 206 includes an antenna array 208 that is implemented 

as two or more antennas, and optionally as a phased array of antennas”), 5:30–37 

(similar), 6:60–64 (“Such a wireless I/O unit 206 may also optionally include one 

or more of Ethernet switch/router 602, beamformer 612, and antenna array 208.”

This correct holding recognizes that in the ’939 specification, the term “wireless input/output (I/O) 

unit” connotes structure, including because it is depicted as a physical structure component in 

access station 102 (’939 Patent, 4:17-23), it is a physical structure that includes an antenna array 

208 (id. 5:30-37), and it may include a beamformer and ethernet router, which are also physical 

structures (id. 6:60-64). Because the wireless I/O unit is within a physical structure and itself 

contains physical structures, a POSITA would understand that this term refers to a physical object 

generally known in the art, and therefore cannot be a means-plus-function term. 

Thus, there is no evidence to rebut the presumption against means-plus-function treatment 

here. To the extent Defendants focus on “unit,” the Court must construe the complete term 

(“wireless input/output (I/O) unit”) rather than “unit” in isolation, and the full phrase connotes 

structure. Indeed, this Court has construed similar terms, such as “receiving unit” and “sending 

unit,” as structural terms. Huawei Tech. Co. Ltd. v. T-Mobile US, Inc., 2017 WL 1376436, *15-17 

(E.D. Tex. 2017) (ruling a POSITA would understand “receiving unit”, “sending unit”, and 

“storage unit” are structures given intrinsic evidence in a communication network device patent).

Finally, the intrinsic evidence also shows the inputs, outputs, structural connections, and 

operations of the wireless I/O unit which additionally discloses sufficiently definite structure. ’939 

Patent, 5:38-43 (“wireless I/O unit 206 establishes two or more access points 402, such as multiple 

access points 402(1), 402(2) . . . 402(N).”), 5:57-58 (“In operation, access station 102 establishes 

multiple co-located access points 402 using wireless I/O unit 206.”), 5:30-64 (“each access point 

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of the multiple access points 402 may correspond to, for example, an individual access point in 

accordance with an IEEE 802.11-based standard.”), 4:17-23 (“Wireless I/O unit 206 is capable of 

transmitting and/or receiving (i.e., transceiving) signals (e.g., wireless communication(s) 106 (of 

FIG. 1)) via antenna array 208.”), 5:40-43, 4:5-7, 4:44-46, 2:53-56, 13:48-51, Figs. 2 and 4; cl. 9 

(“wherein each access point of the plurality of access points corresponds to a communication beam 

of a plurality of communication beams that emanate from the access station”); cl. 10 (“wherein 

each access point...is associated with a medium access controller/baseband unit pair.”). The 

specification confirms that wireless I/O unit is a structure in the access station that contains 

structural components such as baseband processors (BB units 608), RF processor (RF parts 610), 

Ethernet switch/router 602, beamformer 612, and antenna array 208. Id. 6:60-64. It describes that 

the wireless I/O unit 206 can produce “multiple communication beams 202(1), 202(2) . . . 202(N)” 

by using a beamformer with antenna array 208 (id. 4:44-46), indicating the inputs, outputs, and 

connections between wireless I/O unit 206 and, e.g., the antenna array 208. The claim language 

and the specification therefore disclose the inputs, outputs, connections, and operations of the 

wireless I/O unit 206 as the structure in a wireless access station that establishes access points 

(e.g., beams) with its baseband and RF processors, beamformer, transceivers, and antenna array. 

ii. Even if the term is means-plus-function, it is not indefinite. 

If this Court were to depart from the holding of the Central District of California that this 

is not means-plus-function, the specification discloses corresponding structure clearly linked to 

the recited function of establishing a plurality of access points in the form of the wireless 

input/output unit 206 structure or its equivalents. The structure is clearly linked to the recited 

function. ’939 Patent, 5:38-43 (“wireless I/O unit 206 establishes two or more access points 402, 

such as multiple access points 402(1), 402(2) . . . 402(N).”). And wireless I/O unit 206 in the 

specification is a structure at least because the specification clarifies that it is the physical apparatus 

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containing, e.g., baseband processors (BB units 608), RF processor (RF parts 610), Ethernet 

switch/router 602, beamformer 612, and antenna array 208. Id. 6:60-64.

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

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and ordinary meaning; 

not subject to means-plus-function treatment under 35 

U.S.C. § 112 (6). 

Alternative proposed construction, should the term be 

treated as a means-plus-function limitation: not 

indefinite. 

Function:

Claim 15: ascertaining, by monitoring the plurality of 

access points for received signals, that: a first access 

point of the plurality of access points is receiving a first 

signal on a first channel, a second access point of the 

plurality of access points is receiving a second signal 

that is ongoing on a second channel, restrain[ing] at 

least a third access point of the plurality of access 

points from transmitting a third signal on a third 

channel responsive to the ascertaining that the first 

access point is receiving the first signal and that the 

second access point is receiving the second signal that 

is ongoing-on the second channel, wherein the 

restraining at least the third access point prevents 

degradation to the first and second signals. 

Claim 30: ascertaining, by monitoring the plurality of 

access points for received signals, that a first access 

point of the plurality of access points is receiving a first 

signal on a first channel, restrain[ing] at least a second 

access point of the plurality of access points from 

transmitting a second signal on a second channel 

different from the first channel responsive to the 

ascertaining that the first access point is receiving the 

first signal. 

Structure:

Signal transmission/reception logic 404 and/or MAC 

coordinator logic 606 and/or 6:1-51 and/or 6:65-7:20 

and/or 9:11-59 and/or 11:19-12:21 and/or 14:28-15:22 

and/or 15:23-65 and/or 16:53-67 and/or 18:12-55 and 

equivalents thereof. 

Means-plus-function under § 112, ¶ 6 

and indefinite.

Function: 

Claim 15: “ascertaining, by 

monitoring the plurality of access 

points for received signals, that:” (i) 

“a first access point of the plurality of 

access points is receiving a first signal 

on a first channel,” (ii) “a second 

access point of the plurality of access 

points is receiving a second signal that 

is ongoing on a second channel,” (iii) 

“restrain[ing] at least a third access 

point of the plurality of access points 

from transmitting a third signal on a 

third channel responsive to the 

ascertaining that the first access point 

is receiving the first signal and that the 

second access point is receiving the 

second signal that is ongoing-on the 

second channel, wherein the 

restraining at least the third access 

point prevents degradation to the first 

and second signals”

Claim 30: (i) “ascertaining, by 

monitoring the plurality of access 

points for received signals, that a first 

access point of the plurality of access 

points is receiving a first signal on a 

first channel” and (ii) “restrain[ing] at 

least a second access point of the 

plurality of access points from 

transmitting a second signal on 

asecond channel different from the 

first channel responsive to the 

ascertaining that the first access point 

is receiving the first signal.”

Structure: none disclosed

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Plaintiff’s Proposal Defendants’ Proposal

The corresponding structure of “signal 

transmission/reception logic 404” includes the 

characteristics and configuration set forth for the signal 

transmission/reception coordination logic 404 (and the 

MAC coordinator logic 606, which is subsumed within 

the corresponding structure of the signal 

transmission/reception coordination logic 404) in 

the ’939 Patent, including at 6:1-51 and/or 6:65-7:20 

and/or 9:11-59 and/or 11:19-12:21 and/or 14:28-15:22 

and/or 15:23-65 and/or 16:53-67 and/or 18:12-55, and 

equivalents thereof

The phrase “signal transmission/reception coordination logic” does not invoke § 112 ¶ 6. 

Alternatively, if the Court does construe this phrase as subject to § 112 ¶ 6, the term is not 

indefinite because the structure that is clearly linked to the purported functions is set forth in the 

specification such that a POSITA would understand that structure with reasonable certainty. 

i. Pre-AIA 35 USC. § 112 ¶ 6 is not applicable because this term recites 

sufficiently definite structure.

“The failure to use the word ‘means’ creates a rebuttable presumption that § 112 ¶ 6 does 

not apply.” Zeroclick, LLC v. Apple Inc., 891 F.3d 1003, 1007 (Fed. Cir. 2018). This presumption 

cannot be overcome unless “the challenger demonstrates that the claim term fails to recite 

sufficiently definite structure or else recites function without reciting structure for performing that 

function.” Id. (emphasis in original) (quoting Williamson v. Citrix Online, LLC, 792 F.3d 1339, 

1348 (Fed. Cir. 2015)). “From a procedural standpoint, this presumption imposes on [Defendants] 

a burden of going forward with evidence to rebut ... the presumption.” Dyfan, LLC v. Target Corp., 

28 F.4th 1360, 1367 (Fed. Cir. 2022) (quoting Apex, Inc. v. Raritan Comp., Inc., 325 F.3d 1364, 

1372 (Fed. Cir. 2003)). 

Thus, to invoke the application of § 112 ¶ 6, Defendants bear the burden of showing that 

“signal transmission/reception coordination logic” fails to “recite sufficiently definite structure” 

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and recites “function without reciting sufficient structure for performing that function,” in light of 

the intrinsic record and extrinsic evidence presented. See Zeroclick, 891 F.3d at 1007. 

Defendants cannot meet this burden. In 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-cv626, 6:21-cv-695 (W.D. Tex.) (Albright, J.), the Court construed “signal transmission/reception 

coordination logic” to have its plain meaning and found the accused infringers could not rebut the 

presumption that 35 U.S.C. § 112 ¶6 does not apply. Ex. 7 (WDTX Order). This Court should 

reach the same result. Id. See also WSOU Investments LLC v. Google LLC, No. 2022-1063, 2023 

WL 6889033, at *4 (Fed. Cir. Oct. 19, 2023) (reversing the district court’s finding that § 112 ¶ 6 

applied to the terms “computer program code,” “memory,” and “processor” because “a person of 

ordinary skill in the art reading the claim in light of the specification would understand that the 

recited computer program code is stored in a memory structure and running on the processor”). 

The term “signal transmission/reception coordination logic” recites sufficiently definite 

structure and connotes structure considering the claims, specification, and knowledge of an 

ordinary artisan. First, the ’939 patent teaches a POSITA to implement the signal 

transmission/reception coordination logic 404 in the baseband processing layer of off-the-shelf 

processing chips in a wireless routing device. Ex. 2 (’939 Patent), 18:39-44 (“signal 

transmission/reception coordination logic 404 may be implemented at the baseband layer in a 

system that utilizes off-the-shelf chips in which MAC and baseband functionality are integrated 

into a single chip or chips that may not separately expose desired MAC signal(s) (e.g. MAC 

primitives)”). Accordingly, a POSITA understands this term recites definite structure, because it 

is implemented in the physical structure of the baseband processing layer of the processor chip, 

which is an off-the-shelf component. Id.

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Second, the contextual claim language, and corresponding embodiments in the 

specification, clarify that the signal transmission/reception coordination logic is a structure 

because it is contained within and coupled to other physical structures, such as the claimed 

“wireless input/output unit,” which a POSITA understands to be a physical structure comprising 

e.g. baseband processors (“BB units 608”), signal processors (“RF parts 610”), an Ethernet switch 

(“Ethernet switch/router 602”), a beamformer (“beamformer 612”), and an antenna array (“antenna 

array 208”), as described in the specification. See ’939 Patent, 6:54-7:6, FIG. 4 (depicting “signal 

transmission/reception coordination logic 404” coupled within “wireless input/output unit 206”). 

This placement of logic alongside other clearly structural terms highlights that it is being used to 

connote structure. See VR Optics LLC v. Peloton Interactive, Inc., 345 F. Supp. 3d 394, 410 

(S.D.N.Y. 2018) (holding “placement of ‘logic’ alongside and in the same format as...other clearly 

structural terms highlights that the...patent is using the term logic to connote a known structure 

rather than as a nonce substitute for the word ‘means.’”)

Thus, as construed by the U.S. District Court for the Western District of Texas, this term 

is not means-plus-function and would be understood as a sufficiently definite term for structure 

because the specification explains that the signal transmission/reception coordination logic 404 is 

“implemented at the baseband layer in a system that utilizes off-the-shelf chips.” ’939 Patent, 

18:39-44. This falls squarely under the Federal Circuit’s latest guidance on Section 112(6) in Dyfan

v. Target Corp., 28 F.4th 1360 (Fed. Cir. Mar. 24, 2022) (holding that terms “code” and 

“application” are not means-plus-function where they are available “off-the-shelf”). In Dyfan, the 

Federal Circuit held that the term “code” was not means-plus-function because “persons of 

ordinary skill in the art would have understood that the word ‘code,’ when coupled with language 

describing its operation, here connotes structure.” Id. at 1367-68. Further, the Federal Circuit held 

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that the term “application” was not means-plus-function because persons of ordinary skill in the 

art would have understood “application” to refer to a “computer program intended to provide some 

service to a user, and that developers could have, at the relevant time, selected existing ‘off-theshelf software’ to perform specific services and functions.” Id. 

The term at issue is analogous to the structural terms in Dyfan. Like the term “application” 

in Dyfan, which was a known structure because it could be implemented using “off-the-shelf 

software,” here the ’939 Patent discloses that the signal transmission/reception coordination logic 

404 “may be implemented at the baseband layer in a system that utilizes off-the-shelf chips.” ’939 

Patent, 18:39-44. This is even more structural than an “application,” because it is embodied as a 

physical circuit structure in the baseband processing layer of an off-the-shelf chip. See also Apex

Inc. v. Raritan Comput., Inc., 325 F.3d 1364, 1373 (Fed. Cir. 2003) (holding “circuit” connotes 

structure and is not §112(6)) (cited with approval in Dyfan). 

Furthermore, like the “code” in Dyfan, here the ’939 Patent claims couple the term “signal 

transmission/reception coordination logic” with “language describing its operation,” including the 

“ascertaining” and “restraining” steps recited in the claims. Dyfan, 28 F.4th at 1367-68. 

Accordingly, the signal transmission/reception coordination logic 404 in the ’939 Patent is 

analogous to the “code” and “application” terms found not to invoke §112(6) in Dyfan. 

This term is also analogous to the “processor” term found not to be means-plus-function in 

VDPP case. See VDPP LLC v. Vizio Inc., No. 2021-2040 (Fed. Cir. Mar. 2022) (nonprecedential) 

(reversing means-plus-function treatment for “processor”). 

ii. If means-plus-function treatment applies, this term is not indefinite. 

If the Court finds this term is subject to § 112 ¶ 6, then it should adopt the same construction 

as the U.S. District Court for the Central District of California and find that the corresponding 

structure in the specification is the “signal transmission/reception coordination logic 404” and the 

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“MAC coordinator logic 606.” Ex. 5 (ECF No. 312, Minute Order Adopting R&R) at 8-10.

The first issue is whether the specification supports the claimed functions. It does,

including at ’939 Patent, 6:19-53. For instance, this recites the function of “restraining 

transmission on a first channel with a first access point 402 even when receiving a wireless 

communication on a second different channel with a second access point 402.” ’939 Patent, 6:19-

53. The full paragraph from the ’939 Patent provides even more context: 

With reference again to FIG. 4, one access point 402 (and/or 

communication beam 202) may operate on a different channel from 

that of another access point 402 (and/or communication beam 202). 

If the different channels are adjacent and/or not sufficiently-well 

defined, it may be beneficial to restrain transmission on a first 

channel with a first access point 402 even when receiving a wireless 

communication on a second different channel with a second access 

point 402. In another exemplary implementation for different 

channel situations, signal transmission/reception coordination 

logic 404 may restrain transmission on one channel on the basis of 

reception on another channel with an ongoing transmission on a 

third channel to prevent (e.g., inter-modulation) distortion to the 

signals being communicated in the wireless system.

’939 Patent, 6:19-53. 

This is direct linkage to the claimed functions. ’939 Patent, 6:19-53. Further, the sentence 

goes on to explain that for “different channel situations, signal transmission/reception coordination 

logic 404 may restrain transmission on one channel on the basis of reception on another channel 

with an ongoing transmission on a third channel to prevent [] distortion to the signals.” Id. 

The next issue is whether the specification clearly links a structure to these claimed 

functions. Here, the claimed functions are clearly linked to the “signal transmission/reception 

coordination logic 404.” ’939 Patent, 6:19-53. Indeed, the specification expressly teaches that this 

is a function of “signal transmission/reception coordination logic 404,” which “restrain[s] 

transmission on one channel on the basis of reception on another channel.” 

In prior litigations, the accused infringers argued that this clear linkage was insufficient 

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because “signal transmission/reception coordination logic 404” is just a “black box.” But this is 

no “black box” case, as the U.S. District Court for the Central District of California found. As 

shown below, the specification teaches a POSITA what is inside the signal coordination logic 404, 

how to implement it, what it is coupled to, its inputs and outputs, and how it performs its functions.

First, “signal transmission/reception coordination logic 404” is not a “black box,” because 

the specification teaches a POSITA that the “signal transmission/reception coordination logic 404 

may be implemented at the baseband layer in a system that utilizes off-the-shelf chips in which 

MAC and baseband functionality are integrated into a single chip or chips that may not separately 

expose desired MAC signal(s)”). ’939 Patent, 18:39-44. This informs a POSITA that the signal 

transmission/reception coordination logic 404 is a baseband circuit structure that is implemented 

in an off-the-shelf baseband and MAC chipset—not a black box. This is an even clearer case of 

definite structure than Telcordia Technologies, Inc. v. Cisco Systems, Inc., 612 F.3d 1365 (Fed. 

Cir. 2010). In that case, the figures of the patent only showed the relevant controller’s circuit as a 

purported black box, but said nothing about the internal components. Id. Nonetheless, the Court 

held that “the absence of internal circuitry in the written description does not automatically render 

the claim indefinite” because a POSITA would have understood how to build the controller’s 

circuit. Id. at 1376-1377. Here, the ’939 Patent is going above and beyond the knowledge of a 

POSITA—it tells the POSITA to implement the signal transmission/reception coordination logic 

404 in the baseband layer of an off-the-shelf baseband and MAC chipset. ’939 Patent, 18:39-44. 

Second, logic 404 is not a black box because the specification discloses to a POSITA the 

inputs and outputs to the signal transmission/reception coordination logic 404 structure in the 

baseband layer of the chip. The specification explains that the “logic 404 is shown operating at the 

baseband level. Signal transmission/reception coordination logic 404 accepts as inputs receive 

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information from multiple RF parts 610(1, 2,...N) and produces as outputs combined receive 

information from multiple respective BB units 608(1, 2,...K).” ’939 Patent, 18:25-31.

Third, Figure 4 clarifies the signal transmission/reception coordination logic 404 is 

contained within and coupled to other physical structures within the access station, such as the 

claimed “wireless input/output unit,” which a POSITA understands to be a physical structure 

comprising baseband processors (“BB units 608”), signal processors (“RF parts 610”), an Ethernet 

switch (“Ethernet switch/router 602”), a beamformer (“beamformer 612”), and an antenna array 

(“antenna array 208”). See ’939 Patent, 6:54-7:6, FIG. 4 (depicting “signal transmission/reception 

coordination logic 404” coupled within “wireless input/output unit 206”).

Fourth, the specification also explains the inner structure that the signal 

transmission/reception coordination logic 404 uses to perform the recited function of restraining 

transmissions on one channel on the basis of reception on a different channel. The ’939 Patent, 

5:65-6:15 confirms that the logic 404 maintains a specific numbered list of access points 402(1)-

402(N). Each access point is listed and numbered so that it can be identified in relation to each 

other access point that is receiving a signal on the same channel or on a different channel. ’939 

Patent, 5:65-6:15. As another example, column 15 (referencing Figure 10) explains the structure 

of the logic 404 includes “receive information combiner 1002” and “receive information selector 

1004,” which are structures that apply the “signal coordination function to the receive information 

to produce the combined receive information” which is then “utilized to ascertain signal reception 

and restrain signal transmission.” ’939 Patent, 15:30-65. This disclosure also identifies the 

structure of “channel selectivity 1008,” which is a structure that enables the logic 404 to restrain 

transmissions on the basis of reception on a different channel. Id.

Fifth, as the Central District of California court found, the specification teaches “in a more 

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specific implementation with reference to Figures 6 and 8, signal transmission/reception 

coordination logic 404 may be realized as MAC coordinator logic 606.” ’939 Patent, 15:49-65.

Accordingly, a POSITA would understand at least two embodiments for the signal 

transmission/reception coordination logic 404: the baseband implementation corresponding to 

Figure 13, and the MAC implementation corresponding to Figures 6 and 8. Figure 13 discloses 

receive information input to logic 404 from RF Part 610 and the combined receive information 

output to BB unit 608, whereas Figures 6 and 8 disclose an embodiment where the input is from 

BB unit 608 and the signal coordination logic 404 (realized as MAC coordinator logic 606) outputs 

constructive receive indicator to MAC 604. ’939 Patent, 15:49-65, 18:25-31, FIGs. 6, 8, 13. 

Thus, the corresponding structure is “signal transmission/reception coordination logic 404” 

and the “MAC coordinator logic 606.” Ex. 5 (CDCA Order) at 8-10. 

D. “restrain . . . responsive to the ascertaining that the first access point is receiving

the first signal and that the second access point is receiving the second signal that 

is ongoing-on the second channel” (’939 patent claim 15) / “restrain . . . responsive

to the ascertaining that the first access point is receiving the first signal” (’939 

patent claim 30)

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; 

plain and ordinary meaning. 

Plain and ordinary meaning, i.e., “while the first access point 

is ascertained to be receiving the first signal and the second 

access point is ascertained to be receiving the second signal 

that is ongoing-on the second channel” (claim 15)

and “while the first access point is ascertained to be receiving 

the first signal” (claim 30)

These phrases do not require construction and should maintain their plain meaning. 

Defendants’ proposed construction imposes a temporal requirement that is not part of the plain 

meaning of these terms in the context of the specification and prosecution history. Defendants 

point to no evidence of lexicography or disavowal that would justify imposing these temporal 

limitations. See Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)

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(lexicography and disavowal are only two exceptions to rule of ordinary and customary meaning). 

The U.S. District Court for the Central District of California previously rejected a similar 

proposed construction for “responsive to.” Ex. 5 (CDCA Order Adopting R&R) at 11-12. The 

accused infringers had argued that the restraining step must be contemporaneous with the 

ascertaining step, and the Special Master rejected that argument, concluding that “Defendants have 

not demonstrated that one action being ‘responsive to’ another action necessarily requires the 

actions to be contemporaneous.” Id. citing Ex. 6 (R&R) at 63. The Special Master noted that even 

if there are disclosed embodiments consistent with “while,” there is no support for limiting the 

claims to preferred embodiments. Ex. 6 at 63-64. The Special Master also explained that under the 

doctrine of claim differentiation, claim 8 actually requires “the signal transmission/reception 

coordination logic restrains at least one other access point of the plurality of access points while 

the first access point is receiving the first signal,” whereas the independent claims do not include 

the “while” language, which reinforces that it would be wrong to construe the independent claim 

to require “while.” Id. The Special Master also reviewed the prosecution history and concluded 

that “Defendants identify no definitive statements in the prosecution history that would warrant 

limiting ‘responsive to’ to ‘while.’” Id. This Court should reach the same result. 

While the claims recite that “restrain” must be “responsive to the ascertaining,” this simply 

means that the restraining must be responsive to and based on the ascertaining. This language 

would cover an embodiment where the restraining occurs at the same time as the ascertaining or 

an embodiment where the restraining occurs after the ascertaining. The claims do not impose a 

temporal requirement that the restraining occur while the first/second access point is ascertained 

to be receiving, as in Defendants’ proposed construction. Effectively, Defendants argument is that 

the claim is limited to an embodiment where all the claimed functions must be done in “real-time”

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(i.e., limiting the claims to restraining that very second based on ascertaining that an access point 

is receiving a signal that very second). Defendants propose to construe the claim to exclude any

embodiments where the restraining or ascertaining functions are based, in whole or in part, on 

historical information (e.g., restraining later that hour or later that day based on ascertaining that 

an access point is receiving a signal that hour or that day). This argument contradicts the claims, 

the specification, and the prosecution history. 

First, the claims at issue recite that the logic “is capable of ascertaining, by monitoring the 

plurality of access points for received signals, that a first access point of the plurality of access 

points is receiving a first signal on a first channel.” Notably, monitoring for “received signals” 

uses the past tense, not the present tense. Therefore, the plain language of the claims expressly 

covers monitoring the access points for received signals to ascertain that an access point is 

receiving a first signal, or even to ascertain that a second signal is “ongoing.” The claim language 

directly contradicts any argument that the “ascertaining” or “restraining” must be done in realtime, because “ascertaining” that signals are “ongoing” is done by “monitoring the plurality of 

access points for received signals,” including signals “received” in the past.

Second, there is no negative limitation in the claims or prosecution history on how the logic 

ascertains an access point is receiving a signal or on when it performs restraining. In context, the 

plain meaning of the claim covers the use of past data (received signals) for the ascertaining step, 

which also supports that there is no temporal limitation on the restraining step. There is no evidence 

of disclaimer or lexicography that would limit the claims to restraining that very second based on 

ascertaining that an access point is receiving a signal that very second. The claims would also 

cover restraining that hour or that day based on ascertaining that an access point is receiving a 

signal on a specific channel that hour or that day.

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Third, the claims impose no rigid “while” requirement that would exclude embodiments 

where the monitoring data takes some amount of time to arrive at the signal transmission/reception 

coordination logic and is not instantaneously available to it. Even though data may take some 

amount of time to arrive at the logic, this is still monitoring that an access point “is receiving” a 

signal based on “received signals”. There is no evidence a POSITA would interpret these claims 

to exclude any embodiment in which the signal logic ascertains an access point is receiving a signal 

using data that does not instantaneously arrive at the logic. For example, in Figure 11, the signal 

logic 404 is coupled to each access station via a wired or wireless link. ’939 patent, 16:39-67. A 

POSITA appreciates that in such an embodiment, the signal logic 404 must wait some amount of 

time to ascertain what signals each access point is receiving, as the data does not transmit via the 

links 1102a and 1102b instantaneously. All data available to the signal logic 404 is historical data 

in some sense. Yet a POSITA appreciates that the signal logic 404 is still ascertaining what each 

access point “is receiving,” even though it may take some time for the channel measurement data 

to arrive at the signal logic 404 from each access point. The Figure 11 embodiment illustrates that 

Defendants’ temporal limitations construction contradicts a POSITA’s understanding. 

Defendants’ construction would result in a paradox where no system could ever infringe, because 

there is always some temporal gap between the very moment a signal is received, the moment the 

logic can recognize or parse such data, and the moment the restraint can be imposed. A POSITA 

understands restraining may be at least somewhat temporally removed from signal reception.

Fourth, Defendants’ argument improperly excludes the “periodic monitoring” 

embodiment. For example, the claims cover an embodiment that scans the network “periodically” 

and that restrains transmissions by assigning channels to each access point “responsive to 

such [periodic] scanning.” It teaches that the “scanning logic 816 may scan across communication 

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beams 202 using different channels on receive to detect which channel or channels have the least 

or lowest interference levels. This scanning may occur once, periodically, continuously, and so 

forth. A channel assignment vector or similar for channel assignment information 802 may be 

configured responsive to such scanning and interference determinations of scanning logic 812.” 

’939 patent, at 13:34-44 (emphasis added). Notably, the “scanning logic 816” and “channel 

assignment information 802” in this passage are “part of MAC coordinator logic,” an embodiment

of the signal transmission/reception coordination logic. ’939 patent, 11:54-64. Accordingly, the 

claim covers an embodiment in which “scanning may occur...periodically.”

Fifth, the specification also indicates that the claims cover an embodiment in which 

restraints are imposed by predicting what each access point is expected to receive in the future, 

based on what is ascertained about received signals in the past. In wireless networks, it is well 

understood that a station assigned to a specific channel will periodically stop and then restart 

transmissions on that channel. With reference to the Figure 11 embodiment, the specification 

explains that “coordination logic 404” is configured to “restrain[] transmission from an access 

point when another access point...that is operating on the same or a different channel (e.g., that is 

adjacent or otherwise) is expecting an immediate response to a frame that was transmitted by it.” 

’939 patent, 17:18-32 (emphasis added). Likewise, claim 23 provides that the signal logic performs 

“the ascertaining that the access point of the plurality of access points is receiving the signal on a 

second different channel” when this “access point is expecting a short-term response to a frame.” 

’939 patent, 21:1-14. These disclosures are inconsistent with Defendants’ narrowing construction. 

E. “the access point” (939 patent, claims 20- 21, 33-34)

Plaintiff’s Proposal Defendants’ Proposal

the first access point Indefinite for lack of antecedent basis

This Court should adopt the construction adopted by the U.S. District Court for the Central 

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District of California. Ex. 5 (CDCA Order) at 17 (“The term ‘the access point’ refers back to ‘a 

first access point’ for antecedent basis.”). This is consistent with a POSITA’s understanding. Ex. 

6 (R&R) at 70 (“Also, although ‘the access point’ lacks any explicit antecedent basis, the implicit 

antecedent basis is reasonably clear because “the ascertaining” refers back to the ‘ascertaining’

and ‘receiving’ that are recited as to ‘a first access point.’ Thus, the claim is reasonably clear that 

‘the access point’ refers back to ‘a first access point.’”) (citing Ex. 13). Even in IPR2022-00958, 

the Petition mapped “the first access point” of claim 1 and “the access point” in claims 20-22 and 

33-35 to the same “access point 1”. Ex. 11, IPR2022-00958, Petition, at 34-35 (“Kasami teaches 

a ‘first access point’ that ‘is receiving a first signal on a first channel’....More specifically, 

Kasami’s wireless communication apparatus (access point 1)...”), 55 (mapping “the first access 

point” in claims 20-22 and 33-35 to “access point 1.”). 

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

A. “n multiple-input multiple-output transceivers (MIMO)” (’511 patent, claims 1, 

10)

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and 

ordinary meaning

“a single unit comprising a MIMO transmitter and a 

MIMO receiver, with common circuit components”

Defendants’ proposed construction imposes requirements that are not part of the plain 

meaning of this term in the context of the specification and prosecution history. Defendants point 

to no evidence of lexicography or disavowal of scope that would justify imposing these limitations. 

See Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)

(lexicography and disavowal are only two exceptions to rule of ordinary and customary meaning).

The addition of “single unit...with common circuit components” is improper to the extent 

it suggests that the transmitter circuit components need to be common with the receiver circuit 

components. The claims only require MIMO transceivers and do not impose additional limitations 

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on them. If Defendants’ proposal of “single unit...common circuit components” simply requires a 

MIMO transceiver, then it is superfluous. If it requires the same circuits be used for transmission 

and reception, then this requirement is not part of the claims. There is no part of the intrinsic record

that restricts the circuit design of the MIMO transceiver. If anything, it suggests numerous design 

options are compatible with the invention. Ex. 3, (‘511 patent), 4:29-39, 5:33-41. 

B. “MIMO transmitter ...” / “MIMO receiver ...” (’511 patent, claims 1, 10, 20)

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and ordinary 

meaning

MIMO transmitter: transmitter that 

processes MIMO signals for transmission

MIMO receiver: receiver that processes 

received MIMO signals

As with the “MIMO transceiver” term, Defendants point to no evidence of lexicography or 

disavowal of scope that would justify departing from plain meaning. Persons of ordinary skill in 

the art understand the definition of a MIMO transmitter and a MIMO receiver. Notably, 

Defendants’ construction is almost entirely a repetition of language already in the claims requiring

that the MIMO transmitter be configured to process transmit signals and that the MIMO receiver 

be configured to process received signals. A judicial construction would suggest some special 

importance to the addition of the modifier “MIMO” to the word “signals” in the proposed 

constructions, which is not warranted. To the extent Defendants’ proposal of “MIMO signals” 

simply requires a MIMO transmitter or a MIMO receiver, then this requirement is superfluous to 

what is required by the claims. But to the extent Defendants’ proposal of “MIMO signals” requires 

something else, it is unclear what that is, and in any event, it would not be part of the claims.

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

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

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and ordinary 

meaning.

Alternative proposed construction: 3rd 

Generation Partnership Project (3GPP) Long 

Term Evolution (LTE), 3GPP LTE-Advanced, 

3GPP LTE-TDD, 3GPP LTE-FDD.

“one of the 3GPP LTE, LTE-Advanced, LTETDD or LTE-FDD standards that existed at the 

time of the invention” 

Since there is no disclaimer or lexicography, there is no basis to limit this claim to standards 

“at the time of the invention.” The U.S. District Court for the Western District of Texas reached 

the same conclusion on a related term. Ex. 7 (WDTX Order) (Term #2, rejecting the language “at 

the time of the invention.”) A POSITA understands that claims 2 and 11 refer to the 3GPP cellular 

communication standards, which a POSITA understands is updated from time to time. See, e.g. 

’511 Patent at 3:30-47 (“2rd Generation Partnership Project (3GPP) Long Term Evolution (LTE), 

3GPP LTE-Advanced, 3GPP LTE-TDD (time division duplexing), 3GPP LTE-FDD (frequency 

division duplexing)...and other commercial wireless standards, and/or proprietary standards.”).

The ’511 patent is thus not limited to a particular 3GPP standard as of a particular time. 

V. U.S. PATENT NO. 10,715,235 (THE ’235 PATENT)

A. “transceiver” (’235 patent, claims 1, 15, 18, 19)

Plaintiff’s Proposal Defendants’ Proposal

No construction necessary; plain and ordinary 

meaning

“a single unit comprising a transmitter and a 

receiver, with common circuit components”

As with “MIMO transceiver” (’511 patent), Defendants identify no lexicography or 

disavowal. If Defendants’ proposal of “single unit...common circuit components” requires the 

same circuits be used for transmission and reception, then this requirement is not part of the claims. 

There is no part of the intrinsic record that restricts the circuit design of the transceiver. 

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Dated: July 15, 2024 Respectfully submitted,

/s/ Marc Fenster

Marc Fenster

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 

Attorneys for Plaintiff,

XR Communications, LLC,

dba Vivato Technologies

Case 2:23-cv-00202-JRG-RSP Document 81 Filed 07/15/24 Page 37 of 38 PageID #: 1634
CERTIFICATE OF SERVICE

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

electronic service are being served on July 15, 2024, with a copy of this document via the 

Court’s ECF system.

/s/ Marc Fenster

Marc Fenster

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