Case 2:22-md-03034-TGB ECF No. 151, PageID.10735 Filed 06/13/23 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
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`2:22-MD-03034-TGB
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`HON. TERRENCE G. BERG
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`PLAINTIFF NEO WIRELESS, LLC’S
`SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
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`2:22-MD-03034-TGB
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`HON. TERRENCE G. BERG
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`PLAINTIFF NEO WIRELESS, LLC’S
`SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF
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`Case 2:22-md-03034-TGB ECF No. 151, PageID.10736 Filed 06/13/23 Page 2 of 6
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`The Court ordered briefing to “address arguments made in IPR proceedings
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`since the claim construction briefing was originally filed” related to three claim
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`terms. 6/6/23 Order (emphasis added). This Order was in response to a letter from
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`Defendants, in which Defendants identify two IPR proceedings and claim that,
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`“[a]s part of these IPR proceedings, Neo and the PTAB have made statements that
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`are relevant to the claim construction analysis.” 6/6/23 P. Steadman Ltr. at 1.
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`However, contrary to Defendants’ claim, there have been no new arguments
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`made in the identified IPR proceedings since the claim construction briefing was
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`originally filed in this case. In both IPR proceedings, Neo submitted a Patent
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`Owner’s Preliminary Response on February 8, 2023—this was before the filing of
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`Neo’s claim construction brief. It was also well over a month before the filing of
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`Defendants’ brief. This means there have been no new arguments in these IPRs to
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`address. This also means that Defendants had ample time to address any IPR
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`statements in their claim construction briefing—they, in fact, purported to do so.
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`See Dkt. 131 at 30. It is unclear why Defendants’ letter insists that there were new
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`statements made by Neo in these proceedings. There have been none—the intrinsic
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`record for these claim terms has not changed since the parties’ briefing.
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`The only new development is that the PTAB has issued two institution
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`decisions, in which it made preliminary claim construction determinations. Yet,
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`despite Defendants’ claims that these statements “impact the scope and meaning of
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`1
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`Case 2:22-md-03034-TGB ECF No. 151, PageID.10737 Filed 06/13/23 Page 3 of 6
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`the claim terms” or are “directly relevant to the disputed constructions,” 6/6/23 P.
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`Steadman Ltr. at 2, statements made by the PTAB are not binding on the Court.
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`See, e.g., XMTT, Inc. v. Intel Corp., No. 18-1810, 2022 WL 2904308 (D. Del. July
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`22, 2022). This is especially true for preliminary PTAB decisions, which the PTAB
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`itself can change after institution.1 Nor can the PTAB’s characterizations of Neo’s
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`patent claims disclaim or alter their scope.2 Regardless, Neo addresses the PTAB
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`statements for the claim terms highlighted by the Court’s Order.
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`A. ’941 Patent—“antenna transmission scheme” term.
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`With regard to this term, the PTAB stated only that “at a minimum . . . the
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`antenna transmission scheme indicated by the mobile station-specific transmission
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`parameters is capable of supporting, as alternatives, a transmission diversity
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`scheme and a MIMO scheme.” IPR2022-01537, Paper 8 at 29. However, as the
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`PTAB noted, “[t]he positions taken by the plaintiff and defendants (including
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`1 “[T]he Board is not bound by any findings made in its Institution Decision[,] . . .
`is free to change its view of the merits after further development of the record, and
`should do so if convinced its initial inclinations were wrong.” TriVascular, Inc. v.
`Samuels, 812 F.3d 1056, 1068 (Fed. Cir. 2016) (emphasis in original); see also In
`re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1377 (Fed. Cir. 2016) (“[T]he
`Board has an obligation to assess the question anew after trial based on the totality
`of the record.”).
`2 Cf. Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111,
`1124 (Fed. Cir. 2004) (“It is well settled, however, that it is the applicant, not the
`examiner, who must give up or disclaim subject matter that would otherwise fall
`within the scope of the claims.”); 3M Innovative Properties Co. v. Avery Dennison
`Corp., 350 F.3d 1365, 1373–74 (Fed. Cir. 2003).
`2
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`Case 2:22-md-03034-TGB ECF No. 151, PageID.10738 Filed 06/13/23 Page 4 of 6
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`Petitioner) in the NEO Wireless litigation also support this understanding.” Id. at
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`28. Both proposed constructions in this Court, just like the PTAB’s construction,
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`explicitly “require[e] supporting both MIMO and non-MIMO transmission
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`diversity systems.” See Dkt. 114-2 at 4. In other words, the PTAB’s preliminary
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`construction merely addresses the undisputed portion of the parties’ competing
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`constructions in this Court; it does not touch on the actual dispute between the
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`parties (whether those are the only schemes that can be supported), and thus is not
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`relevant to the Court’s resolution of this dispute.
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`B. ’941 Patent—“corresponding subchannel configuration” term.
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`With respect to this term, the PTAB’s recent institution decision adopts the
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`same preliminary construction it adopted in Dell’s prior, unsuccessful IPR of this
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`patent. See IPR2022-01537, Paper 8 at 26–27. First, that decision denying
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`institution in Dell’s IPR was published over a year ago, so the recent decision
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`provided nothing new that the parties did not already have before briefing in this
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`case. In fact, Defendants’ briefing discusses the Dell decision for this very term.
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`In any case, Defendants’ conclusion—that the PTAB’s statements in the Dell
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`IPR support their position here—is wrong. See Dkt. 133 at 11–12. As with the
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`“antenna transmission scheme” term, here the PTAB again determined only that, at
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`a minimum, the construction of this term requires the capability to indicate both
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`distributed subcarriers and localized subcarriers as subchannel configurations.
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`3
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`Case 2:22-md-03034-TGB ECF No. 151, PageID.10739 Filed 06/13/23 Page 5 of 6
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`IPR2021-01468, Paper 12 at 19. The PTAB specifically “decline[d] to speculate”
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`on the dispute here—whether the term requires an explicit “parameter” that
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`indicates “localized” or “distributed.” See id. at 18–19; Dkt. 114-2 at 5.
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`C. ’512 Patent—“at least one of the time slots” term.
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`In IPR2022-01539, the PTAB declined to expressly interpret this term as a
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`preliminary decision, stating that “[o]n the present record,” the PTAB saw “no
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`reason” to interpret the term “at this stage because Patent Owner has not yet
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`presented its support for adopting its proposed interpretation.” IPR2022-01539,
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`Paper 7 at 12 (emphasis added). The PTAB even invited Neo to “explai[n] how the
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`language of the claims, the Specification, prosecution history, and possibly other
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`evidence support its proposed interpretation” during the IPR proceeding. Id. at 12–
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`13; see also id. at 50 (citing the same analysis when discussing an unasserted
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`claim). At that point, the PTAB will have to reassess the construction of this term.
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`See Magnum, 829 F.3d at 1377. Neo, however, has provided its more developed
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`analyses before this Court. And for this claim term in particular, Neo has
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`developed the factual record with unrebutted testimony of a technical expert
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`repeatedly found credible by the PTAB. See IPR2021-01468, Paper 12 at 31–32,
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`45; IPR2022-00277, Paper 10 at 23–24, 33. The Court should construe this term
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`using the developed record and arguments made before it, which the PTAB did not
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`have when making its preliminary determination.
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`4
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`Case 2:22-md-03034-TGB ECF No. 151, PageID.10740 Filed 06/13/23 Page 6 of 6
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`DATED: June 13, 2023
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`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
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`Jaye Quadrozzi (P71646)
`YOUNG, GARCIA &
`QUADROZZI, PC
`2775 Stansbury Blvd., Suite 125
`Farmington Hills, MI 48334
`Telephone: (248) 353-8620
`Email: quadrozzi@youngpc.com
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`ATTORNEYS FOR PLAINTIFF
`NEO WIRELESS, LLC
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on June 13, 2023, the foregoing document was
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`filed electronically with the Clerk of Court using the CM/ECF system, which will
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`send notification of such filing to all attorneys of record.
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`/s/ Christopher S. Stewart
`Christopher S. Stewart
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`5
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