IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

XR COMMUNICATIONS, LLC, dba 

VIVATO TECHNOLOGIES

Plaintiff,

v.

AT&T SERVICES INC., AT&T MOBILITY 

LLC, and AT&T CORP.

Defendant,

NOKIA OF AMERICA CORPORATION, 

ERICSSON INC.

Intervenors.

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

(Lead Case)

JURY TRIAL DEMANDED

PLAINTIFF XR COMMUNICATIONS, LLC’S

PARTIAL OBJECTION TO CLAIM CONSTRUCTION ORDER

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TABLE OF CONTENTS

I. U.S. Patent No. 7,177,369 (“’369 PATENT”)........................................................ 4

A. “pre-equalization parameter” terms (’369 patent, claims 1, 13, 21, 32, 33, 

41) .....................................................................................................................4

B. “substantially reciprocal to” (’369 patent, claim 12) ........................................4

II. U.S. Patent No. 8,289,939 (“’939 PATENT”)........................................................ 5

A. “wireless input/output (I/O) unit” (‘939 patent, claims 15, 30)........................5

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

15, 30) ...............................................................................................................5

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

30) .....................................................................................................................8

D. “The access point” (claims 20-21)....................................................................9

III. U.S. PATENT NO. 8,737,511 (“’511 PATENT”) ............................................... 10

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

1, 10)................................................................................................................10

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

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

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

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

patent, claims 2, 11) ........................................................................................10

IV. U.S. PATENT NO. 10,715,235 (The ’235 PATENT).......................................... 10

A. “transceiver” (’235 patent, claims 1, 15, 18, 19) ............................................10

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TABLE OF AUTHORITIES

Cases

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

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

Dyfan LLC v. Target Corp.,

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

Interval Licensing LLC v. AOL, Inc.,

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

VDPP LLC v. Vizio Inc., 

No. 2021 (Fed. Cir. Mar. 2022) ...................................................................................... 3

WSOU Investments LLC v. Google LLC,

No. 2022-1063, 2023 WL 6889033 (Fed. Cir. Oct. 19, 2023)........................................ 3

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

Exhibit Description Abbreviation

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

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

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

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

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

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

Adopting Special Master’s Report and Recommendations 

Regarding Claim Construction [D.I. 280])

CDCA Order 

Adopting 

R&R

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

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

Master’s Report and Recommendations Regarding Claim 

Construction) 

R&R

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

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

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

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

WDTX Order

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

Patent No. 7,177,369

’369 IPR 

Petition

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

Reply

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

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

’369 IPR Ex. 

2001

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

Patent No. 8,289,939

IPR2022-

00958

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

2024)

’369 IPR 

Institution 

Decision

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

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

(Carter, J.)

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

“Vivato”) respectfully objects in part to the Claim Construction Order (ECF 99).

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

A. “pre-equalization parameter” terms (’369 patent, claims 1, 13, 21, 32, 33, 

41)

Vivato does not object to the Order’s construction of this term. 

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

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

when the forward transmission path is “substantially reciprocal” to the reverse transmission 

path. Vivato objects. The intrinsic record discloses that “reciprocity” is a well-known 

property used to describe the paths in a wireless channel such as in Time Division Duplex 

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

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

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

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

about Time Division Duplex (TDD) systems for certain durations of time. Ex. 1 (’369 

Patent), 10:61-11:5 (“[i]f TDD is used, then the channel can be assumed to be reciprocal 

for durations (coherence time) of approximately 10 ms.”). The Court found that this is not 

an objective boundary, but the law does not require mathematical precision. These 

disclosures provide enough certainty that the claim 12 embodiment is directed to a TDD 

system like in the patent. “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).

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

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

Vivato does not object to the Court’s construction of this term. 

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

30)

Vivato objects to the Court’s finding that this is means-plus-function; indeed, while 

the Central District of California found that it was, “[t]he Western District of Texas, 

however, concluded this is not a means-plus-function term.” ECF 99 at 22. At bottom, the 

Court agrees with Vivato that the intrinsic record says to implement the logic in the 

baseband processing layer of a processing chip in a wireless routing device, but it holds 

that this does not indicate what the logic is and what structure it has. ECF 99 at 23-24. But 

the intrinsic record clearly establishes a baseband signal processor as structure, consistent 

with the expectation and understanding of a skilled artisan in wireless communication 

systems. And if any further information is needed to know what the structure of an 

infringing apparatus is, the claims and specification provide the necessary context, defining 

the inputs, outputs, and structural connections of the logic. The ’939 patent claims a 

“signal” logic that monitors the access points for received signals and restrains signal

transmission, which illustrates the inputs and outputs to a baseband signal processor chip 

or equivalent. The ’939 patent couples the term “signal transmission/reception 

coordination logic” with “language describing its operation.” Dyfan, 28 F.4th at 1367-68. 

The claims recite the inputs to the logic (“monitoring the plurality of access points for 

received signals”) and the output (“restrain[ing]” another access point from transmitting 

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

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

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

transmissions on the access points—just as claimed. ’939 patent, 5:65-6:15, 6:16-53. This 

intrinsic record shows that an ordinary artisan understands the structure of the signal logic 

in a wireless system, as did the Patent Office. This is a far narrower and clearer structure 

than “code” found to be structural in the Dyfan case. Dyfan LLC v. Target Corp., 28 F.4th 

1360, 1367 (Fed. Cir. 2022) (reversing district court’s finding that § 112 ¶6 applied to terms 

“code” and “application” which could be implemented using “off-the-shelf” software). It 

is more analogous to cases involving “processor” or “circuit.” 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); See VDPP LLC v. Vizio Inc., No. 2021-

2040 (Fed. Cir. Mar. 2022) (nonprecedential) (reversing means-plus-function treatment for 

“processor”); 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”). 

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

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

having characteristics and configuration set forth in the specification. Ex. 5 (CDCA Order) 

at 8-10. Those corresponding structures are clearly linked to the claimed functions, as the 

CDCA court held. Id. Vivato believes that the Central District of California’s construction 

is required by the law mandating that a means-plus-function term cover all corresponding 

structure linked to the claimed functions. Here, Vivato objects to the Court’s Order insofar 

as the Order finds that the Figures 3-6 and accompanying text fail to disclose corresponding 

structure clearly linked to the recited functions. Vivato submits that these embodiments are 

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clearly linked to the recited functions and disclose corresponding structure, including 

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

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

accompanying Figures 3-6 showing the processing circuitry in the access station as signal 

logic 404 structure within the wireless input/output unit structure in Figure 4, or as MAC 

logic 606 in Figure 6. In addition, Vivato submits that Figure 5 embodiment and the 

accompanying text which closely mirrors the claim language together disclose sufficient 

structure for the logic by reciting the inputs, outputs, structural connections, and operation 

of the logic. ’939 patent, 5:65-6:54. 

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

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

accepting multiple receive indicators from multiple BB units; (2) determining whether an 

affirmative signal reception indicator from a BB unit is detected in the indicators; (3) 

providing instructions to the MACs that are associated with any BB units for which an 

affirmative reception indicator is detected to restrain signal transmission.”); see ’939 

Patent, 17:54-64. The Order finds that the corresponding structure is a general purpose 

processor programmed to implement these algorithmic steps, and equivalents thereof. An 

equivalent algorithm is also disclosed in the context of the Figure 13 embodiment, which 

recites the following corresponding structure/algorithm:

Signal transmission/reception coordination logic 404

applies one or more coordination functions to the receive

information accepted from RF parts 610(1, 2 . . . N). The

resulting combined receive information is forwarded to BB

units 608(1, 2 . . . K). Based on the combined receive 

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

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

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

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... K) with regard to whether a signal is being received 

and/or constructively received by a corresponding RF part 

610 and emanation apparatus 1204 pair.

’939 patent, 18:45-55.

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

Vivato agrees with the “plain and ordinary meaning” construction for this term and 

agrees with the Court that the “ascertaining” and “restraining” steps do not need to be 

contemporaneous. ECF 99 at 31 (“Specifically, the [California] court considered whether 

the claims require the “ascertaining” and “restraining” to be contemporaneous, and 

concluded there is no such requirement. See Special Master’s Report, Dkt. No. 81-7 at 63 

(noting “Defendants have not demonstrated that one action being ‘responsive to’ another 

action necessarily requires the actions to be contemporaneous”); see also Order Adopting 

Special Master’s Report, Dkt. No. 81-8 at 11–12. This Court agrees that is not a 

requirement of the claims, in part because the invention would not know to ‘restrain’

transmission until it first ‘ascertains’ reception.”). Below, Defendants argued that the 

“ascertaining” and “restraining” steps need to “happen at the same time.” ECF 99 at 28. 

The Court rejected that position. ECF 99 at 31. 

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

signal being received, and not what an access point is expecting to receive in the future.” 

ECF 99 at 31. The Court characterized Vivato’s position as in tension with the present

tense “is receiving” language of the claims. However, Vivato maintains that the claim 

language at issue does not limit how an access point ascertains that a signal is being 

received. The specification explains that one embodiment of the claimed “restraining” 

involves ascertaining that the access point is receiving a signal because the access point is 

expecting an immediate response, and restraining transmission from another access point 

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

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

interpretation because “Claim 15 requires the ‘second signal’ to be ‘ongoing on a second 

channel,’ and its final limitation requires the restraining to prevent degradation to the first 

and second signals, suggesting those signals are still being transmitted when the 

‘restraining’ happens. ’939 Patent at 20:45–47.” But Claim 30 recites no such limitations, 

and the doctrine of claim differentiation forecloses importing limitations in Claim 15 into 

Claim 30. The correct interpretation of Claim 30 cannot import the additional requirements 

appearing only in Claim 15. Beyond claim 15, the Order also points to the specification’s 

description of a “signal” as a “e.g. packet” at col. 1:30 for the proposition that “signal” 

does not refer to an expected signal. But the term “signal” carries its full plain and ordinary 

meaning, and the specification does not define “signal” as only and exclusively a “packet.” 

See ’939 Patent 4:20-36 (identifying “signals (e.g., wireless communication(s) 106 (of FIG. 

1))”), 9:46-59 (identifying “the receive indicators may comprise indications of signal 

reception based on energy signals, cross-correlation signals, data signals, other transmit 

and/or control signals, some combination thereof, and so forth.”), 13:4-9 (describing a 

“large interferer emanating an appropriate signal for a sufficiently long duration”). On 

balance, the sentence at col. 1:30 about “signal (e.g., packet”) does not support importing 

limitations from Claim 15 into Claim 30. The balance of the specification likewise counsels 

against doing so. It discloses that the regularity or frequency of receptions can be used as 

one way to ascertain when an access point is receiving a signal, such as a signal that is 

recurring. ’939 Patent, 13:34-64. 

D. “The access point” (claims 20-21)

Vivato objects. In context, “the access point” refers to “the first access point” and 

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is not indefinite. 

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

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

1, 10)

Vivato does not object to the Court’s construction of this term.

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

10, 20)

Vivato does not object to the Court’s construction of this term.

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

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

claims 2, 11)

Vivato objects to the insertion of language “that existed at the time of the invention” 

as it adds confusion where none needs to exist. Interpreting the claim to have the meaning 

it had at the time of filing does not merit an “at the time of the invention” construction here, 

because the meaning of these terms at the time of filing was a reference to body of 3GPP 

standards known to be updated over time. The Court should follow the Western District of 

Texas and not construe the claim. If not, the Court should at least clarify that claims 2 and 

11 can be infringed by a 3GPP standard that existed at the time of the invention even if that 

standard has been updated over time. ’511 Patent at 3:30-47. 

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

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

Vivato does not object to the Court’s construction of this term.

Dated: November 27, 2024 Respectfully submitted,

/s/ Reza Mirzaie 

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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

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CERTIFICATE OF SERVICE

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

electronic service are being served on November 27, 2024, with a copy of this document 

via the Court’s ECF system.

/s/ Reza Mirzaie

Reza Mirzaie 

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