Exhibit 13

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THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

HEADWATER RESEARCH LLC,

v.

SAMSUNG ELECTRONICS CO., LTD., 

SAMSUNG ELECTRONICS AMERICA, 

INC.,

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§

§

§

§

§

§

§

 CASE NO. 2:22-CV-422-JRG-RSP

 

 

CLAIM CONSTRUCTION ORDER

On February 16, 2024, the Court held a hearing to determine the proper construction of the 

disputed term in United States Patents Nos. No. 9,137,701, 9,143,976 9,271,184, 9,277,433, 

9,277,445, 9,521,578, 9,609,544. Before the Court are the Opening Claim Construction Brief 

(Dkt. No. 82) filed by Plaintiff Headwater Research LLC, the Responsive Claim Construction 

Brief (Dkt. No. 83) filed by Defendants Samsung Electronics Co. Ltd. and Samsung Electronics 

America, Inc. (“Samsung”), and Plaintiff’s Reply (Dkt. No. 89). Also before the Court are the 

parties’ Patent Rule 4-3 Joint Claim Construction and Prehearing Statement (Dkt. No. 76) and the 

parties’ Patent Rule 4-5(d) Joint Claim Construction Chart (Dkt. No. 93). Having reviewed the 

arguments made by the parties at the hearing and in their claim construction briefing, having 

considered the intrinsic evidence, and having made subsidiary factual findings about the extrinsic 

evidence, the Court hereby issues this Claim Construction Order. See Phillips v. AWH Corp., 415 

F.3d 1303, 1314 (Fed. Cir. 2005) (en banc); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 

831, 841 (2015).

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Table of Contents

I. BACKGROUND....................................................................................................................... 2

II. LEGAL PRINCIPLES ........................................................................................................... 2

IV. DISPUTED TERM................................................................................................................ 5

VIII. CONCLUSION................................................................................................................. 11

I. BACKGROUND

Plaintiff alleges infringement of United States Patents No. 9,137,701 (“the ’701 Patent”), 

9,143,976 (“the ’976 Patent”), 9,271,184 (“the ’184 Patent”), 9,277,433 (“the ’433 Patent”),

9,277,445 (“the ’445 Patent”), 9,521,578 (“the ’578 Patent”), 9,609,544 (“the ’544 Patent”), 

10,237,773 (“the ’773 Patent”), and 11,405,224 (“the ’224 Patent”). Dkt. No. 42.

II. LEGAL PRINCIPLES

“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to 

which the patentee is entitled the right to exclude.’” Phillips, 415 F.3d at 1312 (quoting 

Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). 

Claim construction is clearly an issue of law for the court to decide. Markman v. Westview 

Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996). “In 

some cases, however, the district court will need to look beyond the patent’s intrinsic evidence and 

to consult extrinsic evidence in order to understand, for example, the background science or the 

meaning of a term in the relevant art during the relevant time period.” Teva, 135 S. Ct. at 841 

(citation omitted). “In cases where those subsidiary facts are in dispute, courts will need to make 

subsidiary factual findings about that extrinsic evidence. These are the ‘evidentiary 

underpinnings’ of claim construction that we discussed in Markman, and this subsidiary 

factfinding must be reviewed for clear error on appeal.” Id. (citing 517 U.S. 370).

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To determine the meaning of the claims, courts start by considering the intrinsic evidence. 

See Phillips, 415 F.3d at 1313; see also C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 

(Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d 1258, 

1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the specification, 

and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, 388 F.3d at 861. Courts 

give claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in 

the art at the time of the invention in the context of the entire patent. Phillips, 415 F.3d at 1312–

13; accord Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).

The claims themselves provide substantial guidance in determining the meaning of 

particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim can 

be very instructive. Id. Other asserted or unasserted claims can aid in determining the claim’s 

meaning because claim terms are typically used consistently throughout the patent. Id.

Differences among the claim terms can also assist in understanding a term’s meaning. Id. For 

example, when a dependent claim adds a limitation to an independent claim, it is presumed that 

the independent claim does not include the limitation. Id. at 1314–15.

“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id. at 1315 

(quoting Markman, 52 F.3d at 979). “[T]he specification ‘is always highly relevant to the claim 

construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a 

disputed term.’” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 

F.3d 1576, 1582 (Fed. Cir. 1996)); accord Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 

1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term 

a different meaning than the term would otherwise possess, or disclaim or disavow the claim scope. 

Phillips, 415 F.3d at 1316. In these situations, the inventor’s lexicography governs. Id. The 

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specification may also resolve the meaning of ambiguous claim terms “where the ordinary and 

accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of 

the claim to be ascertained from the words alone.” Teleflex, 299 F.3d at 1325. But, “[a]lthough 

the specification may aid the court in interpreting the meaning of disputed claim language, 

particular embodiments and examples appearing in the specification will not generally be read into 

the claims.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) 

(quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); accord 

Phillips, 415 F.3d at 1323.

Although extrinsic evidence can be useful, it is “less significant than the intrinsic record in 

determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317 

(citations and internal quotation marks omitted). Technical dictionaries and treatises may help a 

court understand the underlying technology and the manner in which one skilled in the art might 

use claim terms, but technical dictionaries and treatises may provide definitions that are too broad 

or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert 

testimony may aid a court in understanding the underlying technology and determining the 

particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported 

assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic 

evidence is “less reliable than the patent and its prosecution history in determining how to read 

claim terms.” Id.

The Supreme Court of the United States has “read [35 U.S.C.] § 112, ¶ 2 to require that a 

patent’s claims, viewed in light of the specification and prosecution history, inform those skilled 

in the art about the scope of the invention with reasonable certainty.” Nautilus, Inc. v. Biosig 

Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). “A determination of claim indefiniteness is a 

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legal conclusion that is drawn from the court’s performance of its duty as the construer of patent 

claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005) 

(citations and internal quotation marks omitted), abrogated on other grounds by Nautilus, 134 

S. Ct. 2120. “Indefiniteness must be proven by clear and convincing evidence.” Sonix Tech. Co. 

v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).

IV. DISPUTED TERM

“user of the device . . . perceiving any benefit from the application”

(’701 patent, claim 21; ’976 patent, claim 2; ’184 patent, claim 2; ’433 patent, claim 3; 

’445 patent, claim 2; ’578 patent, claim 4; ’544 patent, claim 2)

Plaintiff’s Proposed Construction Defendant’s Proposed Construction

No construction necessary.

Plain and ordinary meaning.

Indefinite

Dkt. No. 82 at 8.

(1) The Parties’ Positions

Plaintiff contends this term, when viewed in the light of the intrinsic evidence, in particular 

the surrounding claim language, is not indefinite. (Dkt. No. 82 at 4-15.) Plaintiff further supports 

its position with expert testimony. (Id.)

First, plaintiff argues the language “perceiving a benefit,” in context “refers to an 

application benefit that is perceptible to human end-users.” (Id. at 7.) Plaintiff argues this provides 

reasonably certain bounds as a user’s perception is not based on a user’s subjective opinions. (Id. 

at 8.) Plaintiff contends the claims’ direction to determining if an application is in the background 

1 Plaintiff contends the use of this claim term is substantially the same between he asserted patents as are the portions 

of the specifications cited in support of plaintiff’s position. (Dkt. No. 82 at 23.) Plaintiff cites the ’701 Patent as 

exemplary of the other asserted patents for this issue. (Id.) Defendants likewise cite the ’701 Patent throughout its 

briefing. (See e.g. Dkt. No. 83 at 7.) As such the Court cites the ’701 Patent in its analysis as exemplary. 

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or foreground supports this position, particularly in light of the “directly interacting” language. 

(Id. at 9-10.) Plaintiff contends this language makes it clear that the dependent claims at issue are 

directed to determining if a user is using an application, either scrolling or selecting under “directly 

interacting” or viewing or listening under “perceiving any benefit.” (Id.)

Second, plaintiff points to the specification supporting this same position. (Id. at 10.) 

Plaintiff points to ’701 Patent at 8:4-56. (Id. at 10-11.) Plaintiff contends these examples

demonstrate that “benefit” in context is tied to perception, rather than including beneficial but 

unnoticeable functions like downloading updates. (Id. at 11-12.) Plaintiff argues that as the purpose 

of the claims is not based on the desirability or undesirability of the application operation, “benefit” 

is not subjective. (Id. at 13.)

Plaintiff further faults defendants for proffering no expert testimony in support of their

position. (Id. at 4.) Plaintiff contends that without expert testimony, and in light of the above 

intrinsic support, defendants cannot meet their burden of proof to demonstrate indefiniteness. (Id.) 

Defendants argue the term is facially subjective and the patent provides no indication as to 

the term’s objective boundaries and should thus be found indefinite. (Dkt. No. 83.) 

First, Defendants argue the term “necessarily requires a determination into whether a 

particular user ‘perceives any benefit’ from an application” and is thus based on the subjective 

opinion of a user. (Id. at 6.) Defendants cite testimony from an inventor of the patents at issue that 

“whether a user of a device perceiving a benefit” could be subjective. (Id. at 4.)

Second, Defendants argue that neither the specifications nor the claims provide any 

objective bounds for the term. (Id. at 8-14.) Defendants contend the single reference to “benefit” 

in the specification does not permit plaintiff’s alleged rewrite of the term or provide any objective 

bounds. (Id. at 8-10.) Defendants further contend that the portion of the specification cited by 

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plaintiff does not provide examples of benefits but rather provides examples of when a “‘device 

service activity’ can ‘impact network performance’ or ‘reduce network capacity and/or network 

resource availability.’” (Id. at 10.) Defendants also argue that even if the cited portion provided 

examples of “perceiv[ing] a benefit,” such examples, as a matter of law, do not provide an 

objective standard. (Id. at 11.) 

Defendants argue that the claims themselves also provide no objective boundaries for the 

term. (Id. at 13-14.) Defendants argue that claim differentiation dictates that “directly interacting” 

and “perceiving any benefit” must be distinct inquiries contrary to plaintiff’s position. (Id. at 13.) 

Defendants also argue that plaintiff fails to explain how Claim 1’s discussion of foreground and 

background operation defines the scope of the disputed term. (Id. at14.) 

Third, defendants argue that plaintiff rewrites the claims impermissibly to avoid 

indefiniteness, effectively replacing “benefit” with “information.” (Id. at 15-17.) Defendants cite 

the deposition of plaintiff’s expert where he provided that replacing “benefit” with “noticeable 

operation” “seems to be pretty close to the opinion I state.” (Id. at 16.) Defendants contend such 

an understanding would effectively eliminate “benefit” and should be rejected as revisionist claim 

drafting. (Id. at 16-17.)

Defendants also contend this rewrite only creates additional ambiguity, now as to “user.” 

(Id. at 17-19.) Defendants again cite the deposition of plaintiff’s expert where he provided that if 

a user played music on his phone but left the phone in another country he would no longer be a 

user within the meaning of the claim. (Id. at 18.) Defendants contend this creates ambiguity as to 

when someone is a user of a device. (Id.)

Lastly, defendants argue that they do not need an expert to maintain their position and that 

the purpose of the patent does not resolve the alleged ambiguity. (Id. at 19-21.) Defendants note 

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that while they have not retained an expert of their own, one is not required and the testimony of 

an inventor and plaintiff’s expert support defendants’ position regardless. (Id. at 19-20.) 

Defendants argue that the purpose of the patent here also fails to provide objective bounds to the 

purely subjective term “benefit” and none of the case law cited by plaintiff dealt with such a term. 

(Id. at 20-21.)

In reply, plaintiff re-urged its positions. Plaintiff also responded to defendant’s citation to 

inventor testimony, noting that he had not reviewed the patent, so his testimony was not that of a 

POSITA in light of the intrinsic record. (Dkt. No. 89 at 5-6.) 

At the February 16, 2024 hearing, Plaintiff reiterated that the term is not indefinite 

emphasizing that the claims themselves and the specification provide sufficient context for a 

POSITA to understand the term. Defendants responded that “perceiving any benefit” is dependent 

on what a user would consider a benefit and the specification provides no guidance in determining 

what is a benefit to a user.

(2) Analysis

Claim 1 and 2 of the ’701 Patent, for example, recites (emphasis added)

1. A wireless end-user device, comprising:

a wireless wide area network (WWAN) modem to communicate data for Internet 

service activities between the device and at least one WWAN, when configured for 

and connected to the WWAN;

a wireless local area network (WLAN) modem to communicate data for Internet 

service activities between the device and at least one WLAN, when configured for 

and connected to the WLAN;

one or more processors configured to

determine, for a first end-user application capable of running in a 

background state and capable of running as a foreground application, 

whether the application is running in a background state or as a foreground 

application, and control, via an application program interface (API), 

application access for Internet service activities provided through the 

WWAN modem and the WLAN modem, to, based on a first differential 

traffic control policy, selectively block and allow access by the first enduser application to the WWAN modem at a time when data for Internet 

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service activities is communicated through a WWAN modem connection to 

the at least one WWAN,

wherein the access is selectively blocked based on a determination 

that the first end-user application is running in a background state, 

and wherein the access is selectively allowed based on a 

determination that the first end-user application is running as a 

foreground application.

2. The wireless end-user device of claim 1, wherein the one or more processors are 

configured to determine that the first end-user application is running in a 

background state when a user of the device is not directly interacting with that 

application or perceiving any benefit from that application.

The specification discloses:

Another example of device service activity behavior that can impact network 

performance is applications that maintain persistent network communication that 

generates a relatively high frequency of network data packets. Some applications 

have persistent signaling that falls into this category. Specific examples include 

frequent device signaling sequences to update widgets on a desktop; synchronize 

user data such as calendars, contacts, email, and/or other information/content; 

check or update email or RSS feeds; access social networking websites or tools; 

online text, voice or video chat tools; update real-time information; and conduct 

other repetitive actions. Additional application behavior that can significantly tie 

up network resources and capacity include, for example, conference meeting 

services, video streaming, content update, software update, and/or other or similar 

application behavior. For example, even when the user is not directly interacting 

with or benefiting from this type of application, the application can be running in 

the background and continuing to consume potentially significant network 

resources.

For example, the types of service activities and/or device behavior that can reduce 

network capacity and/or network resource availability include software updates for 

OS and applications, frequent OS and application background network accesses 

and signaling, frequent network discovery and/or signaling (e.g., EtherType 

messages, ARP messages, and/or other messaging related to network access), cloud 

synchronization services, RSS feeds and/or other background information feeds, 

application (e.g., web browser) or device behavior reporting, background email 

downloads, content subscription service updates and downloads (e.g., music/video 

downloads, news feeds, etc.), text/voice/video chat clients, virus updates, peer to 

peer networking applications, inefficient network access sequences during frequent 

power cycling or power save state cycling, large downloads or other high 

bandwidth accesses, and/or greedy application programs that continually and/or 

frequently access the network with small transmissions or requests for information. 

Various other examples will now be apparent to one of ordinary skill in the art.

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’701 patent at 8:4-56

In this context, the Court finds that the term “perceive any benefit” is not subjective and is 

sufficiently definite. The claims themselves provide significant context guiding a POSITA’s 

understanding of the term. First, the claims provide that the “perceive any benefit” inquiry is 

directed to determining if an application is running in the foreground or background. This guides 

a POSITA’s understanding of the inquiry away from a question of preference and towards a 

question of use. Second, “perceive” focuses a POSITA’s understanding of “benefit” to what is 

actively perceptible by the user rather than unnoticeable processes. This is distinct from 

determining if an application is providing a benefit to the user as Defendant’s indefiniteness 

argument effectively requires. In other words, the emphasis of that phrase is on “perceiving”

whatever the “benefits” of the application may be, rather than on whether the user perceives the 

operation as beneficial.

The specification provides further context that “benefit” is to be understood broadly 

without regard to user preferences. The cited portion of the specification provides a clear 

description of what would be considered background in the foreground/background determination 

under the “directly interacting with” and “perceiving any benefit” inquiry. In particular, the 

specification provides that background downloads such as emails, messages, or music would fall 

into the background activity category under the “directly interacting with” and “perceiving any 

benefit” inquiry. This cabins what a POSITA would understand “benefit” to cover.

Defendant’s argument that testimony from an inventor supports a finding of indefiniteness 

is unavailing. While an inventor is almost undoubtedly a POSITA, here the inventor is a POSITA 

offering opinions without the context of the patent specification or the claims. (See Dkt. No. 89-

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2.) As such his testimony is of little weight, especially where plaintiff relies on intrinsic evidence 

to support its definiteness position.

Likewise, Defendant’s argument that plaintiff rewrites the term and introduces further 

ambiguity is not persuasive. First, the Court does not believe Plaintiff’s use of “noticeable 

operation” or “information” in explaining the scope and meaning of “benefit” in context is an 

attempt to rewrite the claims. Plaintiff provides these terms to explain what the context provides. 

Second, “user” is not argued to be a subjective term that requires objective bounds from the 

specification. Rather, Defendant’s indefiniteness argument as to “user” under the alleged rewrite 

of the claims is based only on alleged vagueness in a “proximity requirement for the word ‘user.’” 

(See Dkt. No. 83 at 18.) The Court does not find this alleged vagueness amounts to indefiniteness. 

The Court therefore hereby finds “user of the device . . . perceiving any benefit from the 

application” is definite and has its plain and ordinary meaning.

VIII. CONCLUSION

The Court adopts the constructions set forth in this opinion for the disputed term of the 

patent-in-suit.

The parties are ordered that they may not refer, directly or indirectly, to each other’s claim 

construction positions in the presence of the jury. Likewise, the parties are ordered to refrain from 

mentioning any portion of this opinion, other than the actual definitions adopted by the Court, in 

the presence of the jury. Any reference to claim construction proceedings is limited to informing 

the jury of the definitions adopted by the Court.

.

____________________________________

ROY S. PAYNE

UNITED STATES MAGISTRATE JUDGE SIGNED this 3rd day of January, 2012. SIGNED this 20th day of February, 2024.

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