`
`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
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`PLAINTIFF’S RESPONSE TO DEFENDANTS’
`SUPPLEMENTAL BRIEF ADDRESSING CLAIM TERMS IMPACTED BY
`IPR PROCEEDINGS
`
`§
`§
`§
`§
`§
`§
`§
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`Case 2:22-md-03034-TGB ECF No. 155, PageID.10795 Filed 06/19/23 Page 2 of 4
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`Given a chance to defend their original claim that the PTAB (and Neo) had
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`made statements “impact[ing] the scope and meaning” of at least three claim terms,
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`6/6/23 P. Steadman Ltr. at 2, Defendants’ Supplemental Brief (ECF No. 150) fails
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`to deliver on that promise. Defendants simply do not demonstrate how the PTAB’s
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`preliminary comments on claim construction have any legal “impact” on the
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`Court’s construction of these terms. Rather, Defendants solely argue their belief
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`that the PTAB’s preliminary constructions comport with their positions. ECF
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`No. 150, PageID.10729, 10730. In the course of failing to show how the IPR
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`decisions impact the claim constructions in this Court, Defendants also manage to
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`mischaracterize the PTAB’s preliminary determinations for each term in question.
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`A. ’512 Patent—“at least one of the time slots” term.
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`As both sides recognize, the PTAB made the preliminary determination not
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`to construe this term based on “the record at this stage[.]” IPR2022-01539, Paper 7
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`at 13. Defendants, however, go on to then present their own argumentative
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`statements, as if the Board said or endorsed them (even subsequently referencing
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`“[t]he Board’s remarks”). ECF No. 150, PageID.10729. But the PTAB did not
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`make these statements or remarks. Instead, it merely declined to interpret this term
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`on the record before it and invited Neo to submit its developed arguments and
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`evidence in support of its proposal, which Neo has done in this case.
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`B. ’941 Patent Terms
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`1
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`Case 2:22-md-03034-TGB ECF No. 155, PageID.10796 Filed 06/19/23 Page 3 of 4
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`Defendants choose to treat the terms of this patent together, likely in a move
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`to obfuscate that, for one of the terms, the PTAB simply adopted a prior (not new)
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`PTAB position that Defendants could have and did present in their original
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`briefing.1 At bottom, Defendants claim that the PTAB’s “preliminary constructions
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`support this Court construing the claim limitations in accordance with Defendants’
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`proposals[.]” Id., PageID.10730–31. Note that Defendants do not even claim that
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`the PTAB adopted their proposed constructions. The PTAB, of course, did not. But
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`even the claim that the PTAB’s preliminary constructions support Defendants’
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`positions is wrong, as the PTAB itself recognized: “The positions taken by the
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`plaintiff and defendants (including Petitioner) in the NEO Wireless litigation also
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`supports this understanding.” IPR2022-01537, Paper 8 at 28. The PTAB
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`recognized that both side’s proposals here include the requirement to support “both
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`MIMO and non-MIMO transmission diversity systems[,]” and thus the PTAB’s
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`preliminary construction “is not inconsistent” with the positions presented here. Id.
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`at 28–29. This requirement (that both options be supported) is what is
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`encompassed by the PTAB’s use of the words “alternatively indicate” for both
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`terms. Repeated emphasis of these words by Defendants cannot alter this reality.
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`1 Notably, Defendants no longer present the incorrect claim that, in the PTAB’s
`prior decision, “the PTAB rejected” Neo’s argument that the “corresponding
`subchannel configuration” term “does not require . . . a specific, separate
`parameter” for indication, as Defendants did in their briefing. See ECF No. 131,
`PageID.9123.
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`2
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`Case 2:22-md-03034-TGB ECF No. 155, PageID.10797 Filed 06/19/23 Page 4 of 4
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`DATED: June 19, 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
`
`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
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on June 19, 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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`
`
`
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`/s/ Christopher S. Stewart
`Christopher S. Stewart
`
`3
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`
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