IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC,

Plaintiff,

v.

CELLCO PARTNERSHIP D/B/A VERIZON 

WIRELESS AND VERIZON CORPORATE 

SERVICES GROUP INC.,

Defendants.

Case No. 2:23-cv-00352-JRG-RSP

JURY TRIAL DEMANDED

HEADWATER RESEARCH LLC,

Plaintiff,

v.

T-MOBILE USA, INC. AND SPRINT CORP.,

Defendants.

Case No. 2:23-cv-00377-JRG-RSP

(Member Case Under -379 Action)

JURY TRIAL DEMANDED

HEADWATER RESEARCH LLC,

Plaintiff,

v.

T-MOBILE USA, INC. AND SPRINT CORP.,

Defendants.

Case No. 2:23-cv-00379-JRG-RSP

JURY TRIAL DEMANDED

PLAINTIFF HEADWATER RESEARCH LLC’S

REPLY CLAIM CONSTRUCTION BRIEF

* The parties agreed to consolidate claim construction proceedings (briefing and hearing) in the 

above-captioned cases. Thus, Headwater is filing this brief and supporting materials in the TMobile -379 case and will file this brief only in the Verizon -352 case.

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TABLE OF CONTENTS

A. “prospective . . . communications” (’541 patent, claim 1 and dependents)........................ 1

B. “service usage activity” (’541 patent, claim 1 and dependents)......................................... 2

C. “background activity” (’541 patent, claim 1 and dependents)............................................ 4

D. “device service state” (’042 patent, claim 1 and dependents) ............................................ 5

E. “service policy setting” (’042 patent, claim 1 and dependents).......................................... 6

F. “protected partition” (’042 patent, claim 1 and dependents).............................................. 7

G. “differential traffic control policy” (’613 patent, claim 1 and dependents)........................ 8

H. “classify whether a particular application . . . is interacting with the user in 

the device user interface foreground” (’613 patent, claim 1 and 

dependents) ......................................................................................................................... 9

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TABLE OF EXHIBITS & ABBREVIATIONS

Ex.* Description Abbreviation

1 U.S. Patent No. 8,589,541 ’541 patent

2 U.S. Patent No. 9,198,042 ’042 patent

3 U.S. Patent No. 9,215,613 ’613 patent

4 T-Mobile’s Patent Rule 4-2 Identification of Claim Constructions

and Extrinsic Evidence, Ex. A (July 19, 2024)

T-Mobile CC Disclosure

5 Verizon’s Patent Rule 4-2 Identification of Claim Constructions

and Extrinsic Evidence, Ex. A (Aug. 6, 2024)

Verizon CC Disclosure

6 Declaration of Dr. Donald Turnbull for T-Mobile (Aug. 9, 2024) Turnbull Decl.**

7 Declaration of Dr. Donald Turnbull for Verizon (Aug. 24, 2024)

8 Declaration of Dr. Donald Turnbull for AT&T (Sept. 11, 2024)

9 Deposition Transcript of Dr. Donald Turnbull (Aug. 30, 2024) Turnbull Dep.

10

Defendants’ Petition for Inter Partes Review of U.S. Patent No.

8,589,541, Paper 1, IPR2024-00942 (June 7, 2024) ’541 IPR Pet.

11 Defendants’ Petition for Inter Partes Review of U.S. Patent No.

9,198,042, Paper 4, IPR2024-00809 (Apr. 19, 2024) ’042 IPR Pet.

12 Defendants’ Petition for Inter Partes Review of U.S. Patent No. 

9,215,613, Paper 1, IPR2024-00945 (June 7, 2024) ’613 IPR Pet.

13 Claim Construction Order, Dkt. 107, Case 2:22-cv-00422-JRGRPS (E.D. Tex. Feb. 20, 2024) -422 CC Order

Claim Construction Order, Dkt. 118, Case 2:23-cv-00103-JRGRPS (E.D. Tex. Aug. 22, 2024) -103 CC Order

* All exhibits attached to the previously filed declaration of James S. Tsuei, submitted 

with Headwater’s Opening Brief.

** Dr. Turnbull submitted substantively identical declarations (Exs. 6–8) in the T-Mobile -

377 and -379 cases, the Verizon -352 case, and the AT&T -397 and -398 cases. The parties have 

agreed that Dr. Turnbull’s Aug. 30, 2024 deposition applies to all declarations and cases.

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A. “prospective . . . communications” (’541 patent, claim 1 and dependents)

Consistent with dictionary definitions, Defendants’ expert Dr. Turnbull agreed that “prospective” means potential or eligible. Op. Br. at 8. Thus, “prospective or successful communications over a wireless network” includes communications that potentially travel over a wireless 

network (not only communications that successfully travel). This makes perfect sense in the context of the ’541 patent. The patent is all about applying control policies to selectively restrict communications. Thus, the claimed “service usage activity” encompasses both “prospective” communications and “successful” communications. The overall claim phrase is not indefinite, and Defendants’ isolated attacks and incomplete hypotheticals lack merit.

First, Defendants argue that the ’541 patent specification doesn’t use the terms “prospective” or “successful” outside the claims. Resp. Br. at 4. But as this Court held in rejecting indefiniteness of another Headwater patent, “that the term is not in the specification does not make it 

indefinite, or even ‘especially suspect.’” -103 CC Order at 15. Here, Dr. Turnbull agrees that “successful communications” is definite. For the same reasons—including based on the plain meaning 

of the term and the context of the claim—“prospective communications” is likewise definite. The 

specification contains extensive discussion of applying differential policy controls to communications, all of which the meaning of “prospective communications.”

Second, Defendants assert that (a) it is unclear whether “prospective” and “successful” 

communications are mutually exclusive and (b) the inclusion of successful is confusing. Resp. Br. 

at 4. But Defendants already agreed that “successful” is definite. And the claim recites a “service 

usage activity comprising prospective or successful communications.” A POSITA need not define 

the contours of individual words to understand the overall claim phrase with reasonable certainty. 

This is especially so here because the disputed language describes a “service usage policy.” And 

there is no evidence that a POSITA would not understand what a service usage policy is.

Defendants imply that the inclusion of “successful” communication is redundant. But the 

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question is not whether the patentee could have drafted the claim in a different way that might 

have same scope. Rather, the question is whether the claim as written is indefinite. Here, it is not.

Third, Defendants consider the word “prospective” in isolation and present five hypotheticals of what could be considered a prospective communication. Resp. Br. at 4–5. This fails for 

multiple reasons. It does not and cannot show that the overall claim phrase beginning with “the 

service usage activity comprising” is indefinite. Further, Defendants’ hypotheticals are not “contradictory”; nor do they illustrate any clear ambiguity in claim scope. Id. For example, a “prospective communication” broadly includes any communication that potentially travels over the wireless network. To the extent understandable, Defendants’ first hypothetical is not a “communication” (because it does not yet exist) and the last hypothetical is not a “prospective” communication 

(because it has already traveled across the wireless network).

Indeed, to the extent Defendants’ hypotheticals show anything, it is that infringement is a 

factual issue. The hypotheticals are incomplete and disembodied from any actual system. But when 

looking at a system as implemented (or even the prior art, as evidenced by Defendants’ positions 

in IPRs), there is no evidence that a POSITA would be unable to understand and apply the claim 

with reasonable certainty. Specifically, there is no evidence that a POSITA would be unable to 

understand whether the system includes a “service usage activity.”

B. “service usage activity” (’541 patent, claim 1 and dependents)

Defendants argue that applying the “plain and ordinary meaning” of “service usage activity” here is inappropriate because it allegedly “allow[s] Headwater to argue that, e.g., the application itself is the service usage activity” and that the “service usage activity” does not “require a 

wireless network connection.” Resp. Br. at 7. Both arguments lack merit. 

As to Defendants’ first argument, Headwater never agued that “service usage activity” can 

be “an application itself” or the “software component” of the claims. As Headwater explained, the 

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claims require “service usage activity” to be “associated with a first software component of a plurality of software components.” Thus, a “service usage activity” cannot also be the “first software 

component,” because the former must be “associated” with the latter to satisfy the claims. To the 

extent Defendants are concerned that the plain meaning of “first usage activity” might also encompass the “first software component,” that concern is already addressed through the requirements 

of the claims. Indeed, Defendants’ suggestion that “service usage activity” should be something 

which is “generated by” the “software component” (Resp. Br. at 7–8)—when the claims require 

“associated with”—shows how far from the claim language their proposal strays.

Defendant’s second argument, that “service usage activity necessarily ‘requires usage of a 

wireless network connection,” is followed by citations to the specification discussing wireless network usage activities. Resp. Br. at 9–10. But those citations cannot rewrite the plain meaning of 

“service usage activity” into something which “necessarily requires usage of a wireless connection.” They simply show that the invention can be used in wireless networking—not that the term 

“service usage activity” is narrowed through disclaimer. This is why the claims further recite that 

the “service usage activity” comprise “one or more prospective or successful communications over 

a wireless network.” As a matter of claim construction, Defendants need to justify their demand 

for adding “requires usage” to the term “service usage activity.” They have not.

Finally, in characterizing Headwater’s arguments as an “expansion” of claim scope (Resp. 

Br. at 10), Defendants miss the point. Headwater is saying that the plain meaning of “service usage 

activity,” even in the context of the specification, does not “require[] usage of a wireless network 

connection.” This is clear from the specification. E.g.,’541 patent at 107:2-5, 107:13-18. The parties agree that claim 1 requires the “service usage activity” comprise communications over a wireless network, a “wireless network,” and a “wireless end-user device.” None of those words change 

the plain meaning of “service usage activity” or are “clear disclaimer.” Resp. Br. at 10.

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C. “background activity” (’541 patent, claim 1 and dependents)

Defendants and their expert don’t dispute that (1) “background activity” is a known term 

in computer software and networking, and (2) the ’541 patent uses “background activity” in the 

ordinary sense. See Op. Br. at 12–13 (citing Turnbull Decl. at 89:24–91:1). And in their IPR on 

the ’541 patent, Defendants affirmatively represented to the PTO that “determining whether an 

activity is a background activity was well known.” Id. at 14 (citing ’541 IPR Pet. at 12–13). These 

admissions end the inquiry—the term is not indefinite.

Defendants’ entire argument rests on characterizing isolated examples from the specification. This fails for a simple reason. None of the specification’s exemplary descriptions purport to 

redefine “background activity” contrary to the term’s plan meaning, as Dr. Turnbull admitted. See

Turnbull Dep. at 46:16–20 (no opinions on lexicography or disclaimer).

First, Defendants point to one sentence in the specification that says: “For example, when 

the user is not directing interacting with or benefiting from this type of application, the application 

can be running in the background.” Resp. Br. at 11 (emphasis by Defendants). But three underlined 

words in one sentence doesn’t remotely support Defendants’ argument. The patentee wasn’t seeking to define “background activity”—it was giving an example of user interaction when applications can be running in the background. As to “background activity,” the ’541 patent gives extensive explanations and examples, consistent with the plain meaning. Op. Br. at 13; ’541 patent at 

14:47–15:4 (further noting that “Various other examples [of background activities that consume 

significant network resources] will now be apparent to one ordinary skill in the art.”) Defendants 

are also wrong that “benefiting from” (which is not even a claim term) is ambiguous. This Court 

already held that similar claim language in a related patent is definite. Op. Br. at 27.

Second, Defendants argue that the specification gives different possibilities of how traffic 

can be categorized as “background” / “foreground” and that the categorization “depends on the 

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particular device implementation including user or service-provider settings.” Resp. Br. at 12. But 

even if true, that doesn’t support indefiniteness. Defendants are saying that depending on the system, more information or context may be needed. But a POSITA would have that information and 

be able to categorize a “background activity” with reasonable certainty. This doesn’t suggest that 

the term itself is ambiguous or subjective. Indeed, Defendants acknowledged that where a prior art 

reference “provides sufficient context,” it would have no problem determining whether an activity 

is a “background activity.” Resp. Br. at 11. Thus, the term is not indefinite.

D. “device service state” (’042 patent, claim 1 and dependents)

Defendants do not dispute that “device service state” has a plain and ordinary meaning.

They instead contend that the passage at ’042 patent, at 18:6-11, is a lexicographical definition,

despite its use of the phrase “for example” and “sometimes” in the passage. Resp. Br. at 19-21. 

They argue that the specification “describes one specific type of reported information and provides 

the definition for this specific type of reported information as the device service state.” Id. But 

simply because the specification discusses one “type of reported information” as “sometimes” a 

“device service state” in embodiments does not mean it is lexicographically defining “device service state” as that term is used in the claims. In Kyocera, the specification of the patent provided

only one spatial position for the claimed “piston” within the assembly that could have been the 

“driven position” of that piston. This made it appropriate to find lexicography with the specification’s identification of the bottom-most travel position of the piston as the “driven position.”

In contrast, the language from 18:6-11 of the ’042 patent is not equivalent to the single

spatial position of a physical piston in a mechanical assembly observed in Kyocera. It is materially 

different and more complex: information which is (1) received from a device and also (2) received 

or derived outside the device, and which (3) “is required to adequately define the actions needed 

from the service controller to maintain proper DAS system operation.” ’042 patent at 18:6-11.

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Defendants, incredibly, contend that nothing in this language is “unclear or imprecise”—

overlooking how its construction forces the jury to ask more questions: what does it mean to “adequately define” actions needed from “the service controller”? What is “proper DAS system operation” and a “DAS system”? What is “the service controller,” which has no antecedent basis in 

and does not appear at all in the claims? What does it mean if, as Defendants propose, the claim 

requires “information about information”? Defendants not only fail to answer these questions, they 

also fail to explain how a jury could be reasonably expected to do so.

Indeed, Defendants never explain why their proposal fails to “exactly track” what it contends is a lexicographical “definition,” but do offer to “agree to the precise words of the definition 

provided in the specification” to cure that failure. Resp. Br. at 22. Rather than acknowledging their

proposed construction results in confusing claim scope and redundancy, Defendants suggest the 

Court can “clarify” the construction by materially rewriting claim 1 to read: “the report comprising

information about a device service state.” Resp. Br. at 23. A supposed “lexicographical definition”

which requires rewriting the claims for “clarity” cannot be lexicographical.

E. “service policy setting” (’042 patent, claim 1 and dependents)

Headwater’s proposed construction simply clarifies that the “service” in this claim term is 

a network data service. This is a simple clarification that would be helpful to the jury and is fully 

consistent with the intrinsic record. Notably, Defendants do not dispute that “service” here refers 

to a network data service, and Defendants do not argue that Headwater’s construction is incorrect 

or inconsistent with any intrinsic evidence. Resp. Br. at 23-27.

Defendants’ proposal, in contrast, seeks to add unclear limitations that are not required by 

the specification. For example, Defendants’ proposal seeks to limit the claimed service policy setting to a rule that “can be implemented on the device,” but it is unclear how, if at all, Defendants 

intend to limit the claim with this permissive language. Defendants’ Responsive Brief does not 

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explain but instead veers toward an enablement-type discussion in arguing that “one of ordinary 

skill would easily understand how the rule could be implemented on the device.” Resp. Br. at 27. 

Nothing about this establishes that Defendants’ proposed construction should be adopted. Nor do

Defendants identify claim language indicating where the claimed service policy setting must be 

implemented—and if there were such language, then there would seem to be no reason to add it 

through a construction of this claim term. Notably, as with Defendants’ other attempts to limit the 

claims to exemplary embodiments, the portion of the specification Defendants rely upon for their 

“can be implemented” language expressly applies to “some embodiments.” See Resp. Br. at 25; 

’042 patent at 8:26-30. As another example of Defendants’ lack of clarity, Headwater pointed out 

in its earlier briefing that it is unclear what Defendants believe “governing” means and why it 

would be necessary or helpful to add such language here, given that claim 1 already specifies that 

the service policy setting is “configured to assist in controlling one or more communications associated with the wireless end-user device over the wireless access network.” ’042 patent at cl. 1.

Defendants’ reliance upon extrinsic evidence is also misplaced, as none of the identified 

sources includes the bulk of Defendants’ proposed construction and instead just include individual 

words like “rule,” which hardly proves that Defendants’ construction is correct.

F. “protected partition” (’042 patent, claim 1 and dependents)

Defendants’ proposed construction is unprincipled and would not be helpful to the jury in 

any event. Defendants argue that “protected partition” is a “technical term” that a jury would not 

understand, while asserting that the phrase “secure device assisted service execution environment” 

would be clear to a lay jury. Resp. Br. at 29-30. This is not a credible argument, and Defendants 

again have no lexicography or disclaimer to support their proposal.

Confusingly, Defendants also assert that claim 1 already “makes clear that the protected 

partition is a secure execution environment.” Resp. Br. at 28. But if that were the case, then there 

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would be no reason to add Defendants’ “secure ... execution environment” language into a construction. Defendants also confusingly declare that the specification’s use of “protected device 

assisted services (DAS) execution partition” and “protected DAS partition” necessarily means 

those phrases are interchangeable with the term “protected partition”— even though the claim term 

“protected partition” does not include the “DAS” qualifier. Id. at 27-28. 

And while Defendants point to various phrases from the specification that include language 

from their construction (e.g., “execution environment,” “device assisted services”), none of them

are limiting, much less lexicography. All excerpts identified by Defendants only describe exemplary embodiments—in fact, nearly every cited sentence explicitly says it describes “some embodiments.” E.g., Resp. Br. at 28-29; ’042 patent at 5:37-49, 5:58-62, 6:54-56, 7:25-27, 8:60-64, 

10:55-60, 12:24-26, 13:2-11, 15:4-13, 13:2-11, 15:4-13. Defendants’ arguments make clear they 

are simply trying to limit the scope of this term to exemplary embodiments, which is improper.

JVW Enters., Inc. v. Interact Accessories, 424 F.3d 1324, 1335 (Fed. Cir. 2005). Defendants also 

miss Headwater’s point that, where the applicant intended to limit the claims with “device assisted 

service” language, it did so explicitly. E.g., ’042 patent at cl. 14. Headwater’s point was not that 

this means such language “cannot” be included within the scope of “protected partition.”

G. “differential traffic control policy” (’613 patent, claim 1 and dependents)

Defendants do not dispute that there is no lexicography or disclaimer to support their construction. Resp. Br. at 13-15. Nor do Defendants explain why they mischaracterize Headwater’s 

position as supposedly agreeing with Defendants (id. at 13), when that is clearly not so (as, among 

other things, this being a disputed construction plainly shows). Defendants also fail to justify the 

negative limitation they apparently now seek to add through this construction. Despite claim 1 

being a “comprising” claim, Defendants seek to limit its scope to a differential traffic control policy that can only impact network activity. For example, Defendants argue that the accused Doze 

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Mode functionality suspends background activity that includes network activities and “non-network-based activities,” and that this means Doze Mode cannot fall within the scope of claim 1. 

Resp. Br. at 13. Besides showing their position is transparently litigation driven, Defendants’ argument for this negative limitation is completely unfounded and not based on intrinsic evidence. 

If a policy controls traffic and also does something else, that does not mean the policy no longer 

controls traffic—Defendants offer no legal basis for the negative limitation they suggest.

Defendants point to disparate phrases in the specification, but none provides—much less 

requires—the construction they propose. In at least some instances, this picking and choosing misleadingly suggests that such disparate phrases come from the same sentence or paragraph of the 

specification. For example, Defendants state that “[t]he ’613 Patent explains that, because ‘some 

applications and/or OS functions have limited capabilities to defer certain traffic types based on 

fixed settings in the application,’ a solution is ‘differentially controlling these types of network 

service usage activities in various ways depending on the type of service activity requesting network access.’” Resp. Br. at 14 (citing ’613 patent at 11:49-57). But the excerpt providing the supposed “solution” comes from ’613 patent at 8:51-56, which Defendants do not cite. Defendants 

also ignore that their excerpts frequently follow immediately after language making clear that the 

disclosure is non-limiting (e.g., “[i]n some embodiments”). And it is unclear how much of what 

Defendants argue about the specification even relates to the construction of the term “differential 

traffic control policy,” which is the claim language Defendants chose for construction.

H. “classify whether a particular application . . . is interacting with the user in 

the device user interface foreground” (’613 patent, claim 1 and dependents)

Defendants’ response is limited to two arguments. It first asserts in one sentence that 

POSITA would be unable to ascertain the scope of “foreground” / “background” and refers to the 

’541 patent. Resp. Br. at 16. This is entirely insufficient and undeveloped. It cannot show that 

claim 1 of the ’613 patent is indefinite by clear and convincing evidence.

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Defendants’ primary argument on claim differentiation is implausible and rests on unsupported inferences. As an initial matter, Defendants don’t contend that the language of claim 1 is 

itself indefinite. Rather, it argues that the language of claim 6 and the doctrine of claim differentiation somehow render claim 1 indefinite. This fails. Claims 1 and 6 recite, in relevant part:

• Claim 1: “processors configured to . . . classify whether a particular application 

. . . is interacting with the user in the device user interface foreground”

• Claim 6: “wherein the [] processors are configured to classify that the particular 

application is interacting with the user in the device user interface foreground 

when the user of the device is directly interacting with that application or perceiving any benefit from that application”

Claim 1 describes a yes/no classification by the processor (whether the application is interacting 

with the user in the device user foreground). Claim 6 describes configuring the processor to classify “yes” when the user is directly interacting with or perceiving any benefit from the application. 

Thus, claim 6 describes an additional configuration of the processor. It doesn’t purport to define

claim 1’s language of “interacting with the user.” Claims 1 and 6 have different limitations, and 

Defendants fail to show that claim differentiation applies to claim 1’s language.

But even as to claim differentiation, no plausible “presumption” would render claim 1 indefinite. Even assuming “interacting with the user” (in claim 1) includes both when the user is 

“directly interacting with” or “perceiving any benefit from” the application (in claim 6), there is

nothing confusing about this language. The plain meaning of “interacting with” is broader than 

“directly interacting with.” And it is possible for a user to interact with an application without 

“perceiving any benefit from” the application. For example, the user could indirectly interact with 

an application and the application could perform imperceptible processes. This Court already 

found that the language of claim 6 is not indefinite, and Defendants do not argue that the language 

of claim 1 is itself indefinite. Thus, there is no basis under the facts or law to transform two definite

terms into an indefinite one based on alleged claim differentiation.

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Dated: October 29, 2024 Respectfully submitted,

/s/ Marc Fenster

Marc Fenster (CA Bar

CA State Bar No. 181067

mfenster@raklaw.com

Reza Mirzaie

CA State Bar No. 246953

rmirzaie@raklaw.com

Brian Ledahl

CA State Bar No. 186579

bledahl@raklaw.com

Ben Wang

CA State Bar No. 228712

bwang@raklaw.com

Dale Chang

CA State Bar No. 248657

dchang@raklaw.com

Paul Kroeger

CA State Bar No. 229074

pkroeger@raklaw.com

Neil A. Rubin

CA State Bar No. 250761

nrubin@raklaw.com

Kristopher Davis

CA State Bar No. 329627

kdavis@raklaw.com

James S. Tsuei

CA State Bar No. 285530

jtsuei@raklaw.com

Philip Wang

CA State Bar No. 262239

pwang@raklaw.com

Amy Hayden

CA State Bar No. 287026

ahayden@raklaw.com

Jason M. Wietholter

CA State Bar No. 337139

jwietholter@raklaw.com

RUSS AUGUST & KABAT

12424 Wilshire Blvd. 12th Fl.

Los Angeles, CA 90025

Telephone: 310-826-7474

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Andrea L. Fair

MILLER FAIR HENRY PLLC

1507 Bill Owens Parkway 

Longview, Texas 75604 

Telephone: 903-757-6400 

andrea@millerfairhenry.com

Attorneys for Plaintiff 

Headwater Research LLC

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CERTIFICATE OF SERVICE

I hereby certify that counsel of record who to have consented to electronic service are being 

served on October 29, 2024, with a copy of this document via the Court’s CM/ECF system.

/s/ Marc Fenster

Marc Fenster

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