Case 2:22-md-03034-TGB ECF No. 133, PageID.10034 Filed 03/30/23 Page 1 of 20
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
`
`
`2:22-MD-03034-TGB
`
`HON. TERRENCE G. BERG
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`
`
`
`PLAINTIFF NEO WIRELESS, LLC’S
`REPLY CLAIM CONSTRUCTION BRIEF
`
`
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10035 Filed 03/30/23 Page 2 of 20
`
`TABLE OF CONTENTS
`
` I. ARGUMENT IN REPLY .................................................................................... 1
`
`A. ’366 Patent Terms ............................................................................................. 1
`1. “the ranging signal exhibits a low peak-to-average power ratio in
`the time domain” ........................................................................................... 1
`2. “a ranging sequence selected from a set of ranging sequences” ................... 3
`B. ’908 Patent Terms ............................................................................................. 5
`1. “wherein the portion of the frequency band used for transmission
`of the random access signal does not include control channels” .................. 5
`2. “associated with” ........................................................................................... 6
`3. “random access signal” ................................................................................. 7
`C. ’450 Patent Terms ............................................................................................. 8
`1. “time-frequency resource unit” ..................................................................... 8
`D. ’941 Patent Terms ...........................................................................................10
`1. “the antenna transmission scheme comprising a transmission
`diversity scheme or a multiple-input multiple-output (MIMO)
`scheme” .......................................................................................................10
`2. “the mobile station-specific transmission parameters indicate . . . a
`corresponding subchannel configuration . . . the corresponding
`subchannel configuration characterized by distributed subcarriers or
`localized subcarriers in the frequency domain” ..........................................11
`E. ’302 Patent Terms ...........................................................................................12
`1. “probing signal” ..........................................................................................12
`2. Antecedent Basis Terms ..............................................................................13
`F. ’512 Patent Terms ...........................................................................................13
`1. “wherein the first plurality of subcarriers and the second plurality of
`subcarriers are received in at least one of the time slots” ...........................13
`2. “second pilots of a second type” .................................................................14
`
`
`
`i
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10036 Filed 03/30/23 Page 3 of 20
`
`
`TABLE OF AUTHORITIES
`
` Cases
`
`
`American Calcar, Inc. v. American Honda Motor Co., Inc.
` 651 F.3d 1318 (Fed. Cir. 2011) .............................................................................. 8
`
`Ariad Pharms., Inc. v. Eli Lilly & Co.
` 598 F.3d 1336 (Fed. Cir. 2010) .............................................................................. 4
`
`Aylus Networks, Inc. v. Apple Inc.
` 856 F.3d 1353 (Fed. Cir. 2017) .............................................................................. 9
`
`i4i Ltd. P’ship v. Microsoft Corp.
` 598 F.3d 831 (Fed. Cir. 2010) ..............................................................................15
`
`Kustom Signals, Inc. v. Applied Concepts, Inc.
` 264 F.3d 1326 (Fed. Cir. 2001) ............................................................................10
`
`Multiform Desiccants, Inc. v. Medzam, Ltd.
` 133 F.3d 1473 (Fed. Cir. 1998) .............................................................................. 8
`
`Pacing Techs., LLC v. Garmin Int’l, Inc.
` 778 F.3d 1021 (Fed. Cir. 2015) ............................................................................15
`
`Phillips v. AWH Corp.
` 415 F.3d 1303 (Fed. Cir. 2005) ................................................................... 3, 4, 14
`
`Sunovion Pharms., Inc. v. Teva Pharms. USA, Inc.
` 731 F.3d 1271 (Fed. Cir. 2013) ..................................................................... 12, 13
`
`Tecnomatic S.p.a. v. ATOP S.p.A.
` No. 2:18-cv-12869, 2021 WL 1410036 (E.D. Mich. Feb. 21, 2021) ..................... 1
`
`Thorner v. Sony Comp. Ent. Am. LLC
` 669 F.3d 1362 (Fed. Cir. 2012) ............................................................... 4, 5, 7, 14
`
`Wireless Protocol Innovations, Inc. v. TCT Mobile, Inc.
` 771 F. App’x 1012 (Fed. Cir. 2019) ....................................................................... 7
`ii
`
`
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10037 Filed 03/30/23 Page 4 of 20
`
`
`Zak v. Facebook, Inc.
` No. 4:14-cv-13437, 2020 WL 589433 (E.D. Mich. Feb. 6, 2020) ......................... 6
`
`Statutes
`
`35 U.S. Code § 112...................................................................................................................... 5
`
`35 U.S. Code § 112(f) ................................................................................................ 8
`
`
`
`
`
`iii
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10038 Filed 03/30/23 Page 5 of 20
`
`I.
`
`ARGUMENT IN REPLY
`
`A.
`
`’366 Patent Terms
`“the ranging signal exhibits a low peak-to-average power
`1.
`ratio in the time domain”
`Unable to grapple directly with the objective, implementation-specific
`
`guidance Neo identified in its brief, Defendants just bury their heads in the sand,
`
`ignore Neo’s arguments, and claim victory. Defendants bemoan that “Neo cites no
`
`case—and none exists—finding a term of degree definite when the patent does not
`
`provide any guidance on the scope of the term.” Resp. at 3 (emphasis in original).
`
`But Neo has not disputed that there must be “some guidance as to the scope of such
`
`terms.” Tecnomatic S.p.a. v. ATOP S.p.A., No. 2:18-cv-12869, 2021 WL 1410036,
`
`at *20 (E.D. Mich. Feb. 21, 2021) (emphasis added). That is why Neo chronicled
`
`the guidance provided by the patent and its technical context and has explained
`
`why that guidance is sufficient. Defendants cannot hope to meet their clear and
`
`convincing evidence by ignoring the substance of Neo’s evidence and argument.
`
`Critically, Defendants never once dispute that a POSITA would know, from
`
`the patent claims, to evaluate the PAPR relative to the PAPR in the specific
`
`OFDMA system in question, as was common for those in the field at the time. See
`
`Dkt. 127 (“Op. Br.”) at 6–7. In fact, Defendants’ expert Dr. Akl effectively admits
`
`as much, explaining that (1) reducing PAPR in OFDM networks was a well-known
`
`issue at the time of the invention (Dkt. 131-2 (“Akl Decl.”) at ¶¶ 38–39); and (2)
`
`1
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10039 Filed 03/30/23 Page 6 of 20
`
`“those in the field refer to ‘low’ or ‘high’ PAPR . . . [by] comparing the PAPR of
`
`one signal to the PAPR of another signal or a baseline PAPR” (id. at ¶ 43
`
`(emphasis added)). This is exactly Neo’s point: that in the context of OFDMA
`
`systems, a POSITA would know how to compare a particular implementation’s
`
`baseline PAPR with the ranging signal to determine that it is “low.”1
`
`Defendants’ only rebuttal to Mr. Alberth’s opinions in this regard is to
`
`quibble with his choice of 12dBs as an exemplary baseline for conventional
`
`OFDMA systems. See Resp. at 6. But (1) Dr. Akl’s criticisms are misplaced, see
`
`3/30/23 Alberth Decl. at ¶¶ 5-8.; and (2) the entire dispute overlooks that Neo
`
`offered that precise numerical option solely in the alternative. The Court need not
`
`scrutinize the theoretical baseline of all OFDMA systems, since the term is in fact
`
`intentionally implementation-specific, and, as Dr. Akl confirms, a POSITA would
`
`understand the levels of reduction common in OFDMA networks “relative to the
`
`pertinent baseline.” Dkt. 127-3 (“1st Alberth Decl.”) at ¶ 27.
`
`Defendants also fail to rebut the objective guidance provided by the
`
`specification when it explains that a “relatively low peak-to-average power
`
`ratio…improves the power efficiency of the mobile station transmission power
`
`
`1 This is consistent with Defendant Volkswagen’s expert testimony in its IPR of this
`patent, wherein the expert repeatedly refers to prior art efforts to “reduce PAPR in
`OFDM systems” by using “low PAPR waveforms,” without reference to any
`mathematical threshold. Ex. A at ¶ 54 (emphasis added).
`
`2
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10040 Filed 03/30/23 Page 7 of 20
`
`amplifier.” ’366 Patent at 4:34–38; 1st Alberth Decl. at ¶ 24. Again, while Dr. Akl
`
`quibbles about the specific, 3dB reduction Mr. Alberth identifies in the context of
`
`an exemplary system, Mr. Alberth’s general statement about the knowledge of a
`
`POSITA goes entirely unrebutted. See 3/30/23 Alberth Decl. at ¶¶ 9-11.
`
`Finally, Defendants cite to examiner rejections which, respectfully, employ
`
`the same flawed reasoning as Defendants. And Neo certainly did not “acquiesce[]
`
`to the PTO’s indefiniteness finding.” Resp. at 5. The ’366 Patent (as well as Patent
`
`No. 7,995,967) had already been issued using the same phrase.
`
`2.
`
`“a ranging sequence selected from a set of ranging
`sequences”
`There is nothing about the preamble, the language in the claims, or the
`
`specification that would justify imposing a new restriction on the claims that would
`
`prohibit the base station from selecting the ranging sequence. Defendants quote,
`
`bold, and italicize the preambles of the claims. But “transmission by a mobile
`
`station” (Resp. at 7) cannot mean “selecting a ranging sequence from a set of
`
`ranging sequences by a mobile station” (i.e., Defendants’ proposed construction)
`
`no matter how much emphasis is put on that “by.” And Defendants stretch Phillips
`
`past its breaking point. When the Phillips court observed that “the context in which
`
`a term is used in the asserted claim can be highly instructive,”2 it did not invite
`
`
`2 Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005).
`
`3
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10041 Filed 03/30/23 Page 8 of 20
`
`courts to use “context” as a façade for imposing entirely new limitations onto the
`
`claims. In Phillips, the claim language “steel baffle” strongly implied that “baffles”
`
`are not inherently made of steel. 415 F.3d at 1314. Here, the equivalent context
`
`implies the opposite conclusion to the one Defendants want. Because the claims
`
`explicitly allocate steps to the mobile station when necessary, the absence of such
`
`an allocation for the “selecting” step proves it is not restricted to the mobile station.
`
`Finally, Neo notes that, in disputing Mr. Alberth’s testimony about the plain
`
`and ordinary breadth of the term (wrongly, see 3/30/23 Alberth Decl. ¶ 13),
`
`Defendants only nitpick over the evidence he cited. They never dispute his
`
`conclusion (based on his own expertise) that a POSITA would know the term
`
`encompasses selection by a base station as well. See Ariad Pharms., Inc. v. Eli
`
`Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (the adequacy of the written
`
`description depends on “the existing knowledge in the particular field . . .”).3
`
`
`3 This portion of Defendants’ brief also introduces a flawed argument they make
`repeatedly: that the Court should disregard the plain meaning of words in the claim
`if, in Defendants’ estimation, the full scope of that ordinary meaning is not fully
`described in all its facets in the specification. This argument violates clear claim
`construction law, which says that absent “clear lexicography,” it is “not enough that
`the only embodiments, or all of the embodiments, contain a particular limitation. We
`do not read limitations from the specification into claims.” Thorner v. Sony Comp.
`Ent. Am. LLC, 669 F.3d 1362, 1365–67 (Fed. Cir. 2012) (emphasis in original).
`Phillips does not say otherwise—it only allows considering validity for ambiguous
`claims: “we cannot construe the claim differently from its plain meaning in order to
`preserve its validity.” 415 F.3d at 1327 (citation omitted). (continued on next page)
`
`
`4
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10042 Filed 03/30/23 Page 9 of 20
`
`B.
`
`’908 Patent Terms
`“wherein the portion of the frequency band used for
`1.
`transmission of the random access signal does not include
`control channels”
`The dispute for this term has narrowed down to the “control channels”
`
`phrase. Under the claim language, the portion of the frequency band used to
`
`transmit the random access signal “does not include control channels[.]”
`
`Defendants’ goal is plain: if “control channels” is construed broadly enough, it
`
`might swallow the entire frequency band, leaving no frequencies for the random
`
`access signal. But Defendants ignore the main problem with their proposed
`
`construction: that the term “control channel” is a term of art, and not every channel
`
`that carries control information is a “control channel.” 1st Alberth Decl. at ¶ 42.
`
`Instead of engaging on the substantive merits of the dispute, Defendants misstate
`
`Mr. Alberth’s opinion to attack it. According to Defendants, Mr. Alberth set out an
`
`“arbitrary ‘primary purpose test’” for the term. Resp. at 12. Mr. Alberth’s expert
`
`opinion was that (i) a person of skill in the art would have “known unmistakably
`
`
`In other words, the Court cannot violate Thorner in response to Defendants’
`
`warnings of an impending written description problem. A written description
`defense is a question of fact that Defendants must prove by clear and convincing
`evidence to a jury; claim construction is not the place to evaluate that question. To
`be clear, Neo is confident (and has shown in its briefing) that each construction it
`proposes complies with Section 112. But this is not summary judgment or trial, and
`Neo is entitled to develop a full record and hold Defendants to their burden. As such,
`the Court should not be distracted by Defendants’ improper written description
`arguments, and should focus on the plain meaning of the claims.
`
`5
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10043 Filed 03/30/23 Page 10 of 20
`
`what a ‘control channel’ is”; and (ii) that Defendants’ proposed construction is
`
`inappropriately broad when compared to its use by persons of skill in the art. 1st
`
`Alberth Decl. at ¶ 42. Mr. Alberth explained that it was a “well-known technique
`
`in the art at the time of the patent to create distinct channels…based on the primary
`
`purpose of the channel[.]” See id. Mr. Alberth was explaining why, in most
`
`systems, the control channels are “unmistakabl[e]” and easy to identify.
`
`The Court should adopt Neo’s construction, with its uncontested clarifying
`
`language and the plain meaning of “control channels.”
`
`“associated with”
`2.
`Defendants’ sole justification for their construction is supposed disclaimer
`
`through statements made in a prior IPR paper. But “such disavowing statements
`
`must be both clear and deliberate” for disclaimer to apply. Zak v. Facebook, Inc.,
`
`No. 4:14-cv-13437, 2020 WL 589433, at *4 (E.D. Mich. Feb. 6, 2020). Neo made
`
`a rather simple argument in the prior IPR: the MAC ID disclosed in the Walton
`
`reference is “associated with” the wrong element (the mobile station rather than the
`
`access point). The MAC ID’s disclosed function—identifying the mobile station—
`
`was evidence supporting Neo’s point. This argument did not implicate the
`
`definition of “associated with,” much less the narrow interpretation Defendants
`
`seek here. And, contrary to Defendants’ assertion, the PTAB did not adopt any
`
`construction of the term beyond its ordinary meaning. Rather, the PTAB agreed
`
`6
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10044 Filed 03/30/23 Page 11 of 20
`
`that the Petitioner did “not sufficiently explain how a MAC ID, which is taught as
`
`identifying a user terminal, is associated with a base station[.]” Dkt. 131-13 at 32.
`
`The Court should reject Defendants’ fabricated disclaimer theory.
`
`“random access signal”
`3.
`Defendants argue that, because the specification uses the phrase “random
`
`access signal” once, in an embodiment described as “send[ing] an initial random
`
`access signal over the DSSS channel” (’908 Patent at 8:52–53), the term “random
`
`access signal” should be construed to be “DSSS signal.” Resp. at 20. As discussed
`
`above in footnote 3, this pattern of argument has been buried in a deep grave: “It is
`
`likewise not enough that the only embodiments, or all of the embodiments, contain
`
`a particular limitation. We do not read limitations from the specification into
`
`claims; we do not redefine words.” Thorner, 669 F.3d at 1366.
`
`Importantly, Defendants do not even dispute that “random access signal” has
`
`a plain and ordinary meaning. This is surprising, because this fact defeats
`
`Defendants’ reliance on the allegedly definitional statements in the specification,
`
`as stated by the very case supposedly establishing Defendants’ “rule.”
`
`Compare Resp. at 20, with Wireless Protocol Innovations, Inc. v. TCT Mobile,
`
`Inc., 771 F. App’x 1012, 1018 (Fed. Cir. 2019) (Giving specification language
`
`“decisive significance” only “for a phrase like “grant pending absent state” that
`
`hardly has a plain ordinary meaning.” (emphasis added)).
`
`7
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10045 Filed 03/30/23 Page 12 of 20
`
`In addition, Defendants’ attempts to refute Neo’s claim differentiation
`
`argument fall flat, as neither case cited is analogous here. American Calcar, Inc. v.
`
`American Honda Motor Co., Inc. was a case of lexicography, which the
`
`Defendants do not have here, even as an argument. 651 F.3d 1318, 1337 (Fed. Cir.
`
`2011). And the court in Multiform Desiccants, Inc. v. Medzam, Ltd. was construing
`
`a term under Section 112(f)—which statutorily mandates use of the specification to
`
`limit a term to disclosed embodiments and equivalents thereof. 133 F.3d 1473,
`
`1478–80 (Fed. Cir. 1998). Here, the term “random access signal” is not a means-
`
`plus-function element, and Defendants do not even contend otherwise. The Court
`
`should reject Defendants’ proposed construction.
`
`C.
`
`’450 Patent Terms
` “time-frequency resource unit”
`1.
`Defendants do not dispute that their proposed construction of “time-
`
`frequency resource unit” commits (again) one of the cardinal sins of patent law by
`
`attempting to read a limitation from the written description into the claims. Instead,
`
`Defendants claim they are entitled to so limit this construction due to disclaimer.
`
`Resp. at 21–24. Defendants argue no other basis for their construction. Defendants
`
`also do not dispute that disclaimer can only occur if the statement is clear and
`
`unmistakable and not “subject to multiple reasonable interpretations” that exclude
`
`any possibility of other forms of grouping as taught by the ’450 Patent. See Aylus
`
`8
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10046 Filed 03/30/23 Page 13 of 20
`
`Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1363 (Fed. Cir. 2017). In fact,
`
`Defendants have affirmatively established no disclaimer took place—that the
`
`statement at issue is subject to multiple reasonable interpretations—because
`
`Volkswagen has taken the position in their IPR that no construction is necessary.
`
`Furthermore, Defendants do not dispute Neo’s explanation of the teachings
`
`of the ’450 patent nor Mr. Alberth’s reasonable explanation that he was merely
`
`discussing one embodiment in the sentence purportedly giving rise to disclaimer.
`
`1st Alberth Decl. at ¶¶ 37–41. Finally, Defendants are wrong to claim—without
`
`authority—that Neo should be stuck with disclaimer for “time-frequency resource
`
`unit” because it agreed to a construction for “time-frequency coordinate.” Resp. at
`
`24. One does not follow the other. The proper construction of “time-frequency
`
`coordinate” as one-dimensional does not depend on grouping by application type
`
`specifically; as Neo explained, it stems from the specification’s teaching of
`
`“grouping packet streams, according to certain shared parameters, into regularly
`
`shaped time-frequency units.” Op. Br. at 22. But the specification and the
`
`testimony of Mr. Alberth establish that those “shared parameters” encompass
`
`parameters other than just application type. Accordingly, the one dimensionality of
`
`the “time frequency coordinate” does not limit the scope of a “time-frequency
`
`resource unit,” and Defendants’ proposed construction fails.
`
`9
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10047 Filed 03/30/23 Page 14 of 20
`
`D.
`
`’941 Patent Terms
` “the antenna transmission scheme comprising a
`1.
`transmission diversity scheme or a multiple-input multiple-
`output (MIMO) scheme”
`The inclusion of the language “alternatively indicate” in a prior agreed
`
`construction had nothing to do with whether the claim prohibits a possible third
`
`antenna transmission scheme. Instead, it was to serve the purpose of clarifying that
`
`a transmission scheme could not be both transmission diversity and MIMO at the
`
`same time. Defendants’ Response does not support reinterpreting the agreed
`
`language in a manner inconsistent with the plain meaning of the claims and the
`
`intent of the agreed construction.
`
`Defendants misread the Kustom case in the exact same way they misread the
`
`Dell construction. See Resp. at 25–26. In Kustom, the patentee claimed a method
`
`for searching signals either by frequency or by magnitude. Kustom Signals, Inc. v.
`
`Applied Concepts, Inc., 264 F.3d 1326, 1330 (Fed. Cir. 2001). The Federal Circuit
`
`affirmed the district court’s construction, which required that only one of
`
`frequency and magnitude searches could be performed, “but not both.” Id. at 1331.
`
`Since the accused product always performed both a frequency search and a
`
`magnitude search, it did not infringe the claim. Id. at 1332. Contrary to
`
`Defendants’ suggestion, Kustom did not define the word “or” as excluding possible
`
`third options. It never touched on that issue at all. And no cases suggest that the
`
`10
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10048 Filed 03/30/23 Page 15 of 20
`
`plain meaning of “comprising,” whether used in the preamble or body of a claim,
`
`excludes additional, unrecited elements. In fact, the patent itself says the opposite.
`
`See ’941 Patent at 2:64-3:11. In addition, Defendants’ argument—that it is
`
`“nonsensical” for a system to support both multiple-antenna and single-antenna
`
`schemes is simply not true. See 3/30/23 Alberth Decl. at ¶¶ 14-15.
`
`2.
`
`“the mobile station-specific transmission parameters
`indicate . . . a corresponding subchannel configuration . . .
`the corresponding subchannel configuration characterized
`by distributed subcarriers or localized subcarriers in the
`frequency domain”
`The main dispute for this term is whether it requires a separate indicator
`
`flag, which, for example, has a value of 0 for indicating distributed subcarriers and
`
`has a value of 1 for indicating localized subcarriers. It does not. There is nothing in
`
`the claim requiring a specific way to indicate the subchannel configuration.
`
`To come up with support for their construction, Defendants assert that “the
`
`PTAB considered and expressly rejected Neo’s . . . argument . . . to avoid a
`
`separate parameter that indicates these two alternatives.” Resp. at 29. This is
`
`patently wrong. The PTAB in fact “decline[d] to speculate on whether the argued
`
`limitation ‘requires the subchannel configuration to explicitly include a “localized”
`
`or “distributed” indicator’ or could simply be satisfied ‘based on the subchannel
`
`configuration itself (e.g., based on the allocation of resources sent across the
`
`11
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10049 Filed 03/30/23 Page 16 of 20
`
`subchannel).” Resp. Ex. 17 at 18–19. The Court should reject Defendants’ flagrant
`
`attempt to rewrite the PTAB’s decision.
`
`E.
`
`’302 Patent Terms
`“probing signal”
`1.
`As with “random access signal” above, Defendants also cannot justify
`
`limiting “probing signal” to a “DSSS signal” merely because it was an
`
`embodiment described in the ’302 Patent. Defendants fail to (and cannot) identify
`
`any clear disavowal of claim scope or lexicography. Defendants’ support lies
`
`entirely within the ’302 Patent’s specification’s description of DSSS signals as
`
`non-limiting embodiments. But even the title of the relevant section–“Channel
`
`Probing Using DSSS in the Overlay System”–describes DSSS as an example of
`
`how to do channel probing, not a definition. ’302 Patent at 8:65 (emphasis added).
`
`The beginning of that section confirms that the DSSS is used “[i]n one
`
`embodiment of the invention….” Id. at 8:65–9:8 (emphasis added).
`
`Defendants’ citation to a single sentence in prosecution that includes the
`
`phrase “DSSS (probing) signal” does not help them. The cited phrase simply
`
`included the parenthetical “(probing)” to clarify that the DSSS signal in this
`
`context was an embodiment of the claimed “probing signal.”
`
`Furthermore, Defendants’ reliance on Sunovion Pharms., Inc. v. Teva
`
`Pharms. USA, Inc. is misplaced. 731 F.3d 1271, 1277 (Fed. Cir. 2013). There, the
`
`12
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10050 Filed 03/30/23 Page 17 of 20
`
`court only resorted to statements in the specification after determining the claim
`
`term had no ordinary meaning. Id. at 1276. Here, the term “probing signal” has a
`
`plain and ordinary meaning and the patent defines an embodiment, not the
`
`invention, as using DSSS probing signals. 1st Alberth Decl. ¶¶ 44–46.
`
`The remainder of Defendants’ section merely boils down to unpersuasive
`
`attorney arguments, including statements regarding how a POSITA would
`
`understand the term “probing signal” with no expert opinion cited in support. The
`
`Court should therefore defer to Mr. Alberth’s unrebutted testimony.
`
`Antecedent Basis Terms
`2.
`Defendants’ aspersions as to Neo’s arguments in support of the plain and
`
`ordinary meaning are mere projection—it is Defendants that wish to rewrite the
`
`claim based on their dormant infringement position regarding SC-FDMA/DFT-
`
`OFDM. Resp. at 34. Defendants’ proposal does nothing to aid the Court or the jury
`
`as to claim scope, instead making the terms cumbersome and opaque.
`
`F.
`
`’512 Patent Terms
`“wherein the first plurality of subcarriers and the second
`1.
`plurality of subcarriers are received in at least one of the
`time slots”
`Defendants’ Response confirms that their intended (mis)reading of this term
`
`would render it superfluous, as explained in Plaintiff’s opening brief. Op. Br. at
`
`35–36. And their only basis for opposing Neo’s clarifying construction (other than
`
`a claim differentiation point Neo already addressed, see 1st Alberth Decl. at ¶ 49) is
`
`13
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10051 Filed 03/30/23 Page 18 of 20
`
`to argue (confusingly) that Neo’s construction would exclude the embodiment
`
`shown in Figure 2. Resp. at 35. But even if that were a rule of claim construction,
`
`Figure 2 would be irrelevant, since it has nothing to do with the two types of
`
`subcarriers, but is rather just “a basic structure of a multi-carrier signal.” ’512
`
`Patent at 2:8. Consistent with Figure 5, Neo’s construction is correct.
`
`“second pilots of a second type”
`2.
`Here, Defendants again try to import a particular embodiment from the
`
`specification. Defendants argue: “The specification defines the alleged invention as
`
`having two particular types of pilot signals: common pilots and cell-specific
`
`pilots.” This perfectly illustrates their backwards approach to claim construction.
`
`“It is a bedrock principle of patent law that the claims of a patent define the
`
`invention,” not the specification. Phillips, 415 F.3d at 1312 (quotation omitted).
`
`After quoting some (decidedly non-definitional) language from the
`
`specification, Defendants proceed to argue that their proposed construction—
`
`which would import limitations from the specification—is “[c]onsistent with this
`
`disclosure” because of a parallel that can be drawn between what was included in
`
`the claims and what is disclosed in the specification. Resp. at 37. Again, this
`
`pattern of argument has been repeatedly and thoroughly rejected. Thorner, 669
`
`F.3d at 1366. It is not enough to draw a parallel to how the invention was defined
`
`in the claims and how it is described in the specification and claim that anything
`
`14
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10052 Filed 03/30/23 Page 19 of 20
`
`missing must be present and reintroduced via claim construction. Inventors choose
`
`limitations that they believe define what they invented. See i4i Ltd. P’ship v.
`
`Microsoft Corp., 598 F.3d 831, 843 (Fed. Cir. 2010) (refusing to import a
`
`limitation from the specification, explaining—“[h]ad the inventors intended this
`
`limitation, they could have drafted the claims to expressly include it.”). If there are
`
`differences between the specification and the claims, the inference to draw is that
`
`not every aspect of an embodiment is needed to define the invention in the claim.
`
`Defendants’ reliance on the Microsoft, Alloc, and Verizon cases is
`
`misplaced. Contrary to the Defendants’ argument, there is not a special line of
`
`cases by which the words “this invention” justifies a break from the normal rules
`
`that the limitations of the embodiments cannot be grafted onto the claims. Rather,
`
`these are just disclaimer cases. See Pacing Techs., LLC v. Garmin Int’l, Inc., 778
`
`F.3d 1021, 1024 (Fed. Cir. 2015) (“We have found disavowal or disclaimer based
`
`on clear and unmistakable statements by the patentee that limit the claims, such as
`
`‘the present invention includes…’….” (emphasis added)) (collecting cases). And
`
`here, the language Defendants quote in their brief is explicitly permissive. See
`
`Resp. at 38 (“Aspects of this invention[,]” “In aspects of this invention[,]” etc.).
`
`Defendants cannot and have not pointed to any disclaimer or definition in the
`
`specification that would justify their proposed construction.
`
`15
`
`

`

`Case 2:22-md-03034-TGB ECF No. 133, PageID.10053 Filed 03/30/23 Page 20 of 20
`
`DATED: March 30, 2023
`
`
`
`
`
`
`
`Respectfully submitted,
`/s/ Christopher S. Stewart
`Jason D. Cassady
`Texas State Bar No. 24045625
`Email: jcassady@caldwellcc.com
`Christopher S. Stewart
`Texas State Bar No. 24079399
`Email: cstewart@caldwellcc.com
`CALDWELL CASSADY CURRY
`P.C.
`2121 N. Pearl St., Suite 1200
`Dallas, Texas 75201
`Telephone: (214) 888-4848
`Facsimile: (214) 888-4849
`
`Jaye Quadrozzi (P71646)
`YOUNG, GARCIA &
`QUADROZZI, PC
`2775 Stansbury Blvd., Suite 125
`Farmington Hills, MI 48334
`Telephone: (248) 353-8620
`Email: quadrozzi@youngpc.com
`
`ATTORNEYS FOR PLAINTIFF
`NEO WIRELESS, LLC
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on March 30, 2023, the foregoing document
`
`was filed electronically with the Clerk of Court using the CM/ECF system, which
`
`will send notification of such filing to all attorneys of record.
`
`
`
`/s/ Christopher S. Stewart
`Christopher S. Stewart
`
`
`
`