Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8104 Filed 11/14/22 Page 1 of 35
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8105 Filed 11/14/22 Page 2 of 35
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`Neo Wireless LLC,
`
`Plaintiff,
`
`
`
`
`
`v.
`
`C.A. NO. 6:21-cv-0024-ADA
`
`Dell Technologies Inc. and Dell Inc.,
`
`
`
`Defendants.
`
`JURY TRIAL DEMANDED
`
`
`
`PLAINTIFF NEO WIRELESS LLC’S RESPONSIVE
`CLAIM CONSTRUCTION BRIEF
`
`
`

`

`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8106 Filed 11/14/22 Page 3 of 35
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`
`I.
`II.
`
`TABLE OF CONTENTS
`
`INTRODUCTION .............................................................................................................. 1
`ARGUMENT ...................................................................................................................... 1
`A. Disputed Terms from U.S. Patent 8,467,366 ................................................................ 1
`1. “the ranging signal is formed from a ranging sequence selected from a set of
`ranging sequences [associated with the cell] for identifying the mobile station” .... 1
`2. “exhibits a low peak-to-average power ratio in the time domain” ........................... 6
`B. Disputed Terms from U.S. Patent No. 10,044,517 ..................................................... 10
`1. Preambles ............................................................................................................... 10
`“A method for a mobile device to receive data packets in an orthogonal
`frequency division multiple access (OFDMA) wireless communication
`system operating on multiple radio-frequency (RF) bands, the method
`comprising” – claim 1 ............................................................................................ 10
`“A mobile device in an orthogonal frequency division multiple access
`(OFDMA) wireless communication system operating on multiple radio-
`frequency (RF) bands, the mobile device comprising:” – claim 13 ....................... 10
`2. “receiving scheduling information from a serving base station, the scheduling
`information indicating an allocation of airlink resources in a first RF band
`and a second RF band” ........................................................................................... 12
`3. “receive scheduling information from a serving base station, the scheduling
`information indicating an allocation of airlink resources for receiving a first
`signal… over a first RF band and a second signal … over a second RF band” ..... 12
`4. “allocation of airlink resources [] for receiving a first signal with a first
`frame structure having first frame boundaries and a second signal with a
`second frame structure having second frame boundaries” ..................................... 15
`5. “traffic characteristics” ........................................................................................... 18
`C. Disputed Terms from U.S. Patent No. 10,075,941 ..................................................... 20
`1. “the antenna transmission scheme comprising a transmission diversity scheme
`or a multiple-input multiple output (MIMO) scheme” ........................................... 20
`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” .................................................................................................................. 23
`D. Disputed Terms from U.S. Patent No. 10,447,450 ..................................................... 25
`1. “the segment having a starting time-frequency coordinate” .................................. 25
`E. Disputed Terms from U.S. Patent No. 10,833,908 ..................................................... 27
`
`i
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8107 Filed 11/14/22 Page 4 of 35
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`1. Preambles ............................................................................................................... 27
`“A mobile station comprising” – claims 1 and 21 ..................................................... 27
`“A method performed by a mobile station, the method comprising” – claim 11 ....... 27
`CONCLUSION ................................................................................................................. 28
`
`
`
`
`III.
`
`
`
`
`
`ii
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8108 Filed 11/14/22 Page 5 of 35
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`TABLE OF AUTHORITIES
`
`
`
`Cases
`
`Application of Gardner
` 427 F.2d 786 (C.C.P.A. 1970) .................................................................................................. 18
`
`Baldwin Graphic Systems, Inc. v. Siebert
` 512 F.3d 1338 (Fed. Cir. 2008)................................................................................................. 15
`
`Braintree Laboratories, Inc. v. Novel Laboratories, Inc.
` 749 F.3d 1349 (Fed. Cir. 2014)................................................................................................... 7
`
`Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc.
` 289 F.3d 801 (Fed. Cir. 2002)................................................................................................... 11
`
`Exmark Mfg. Co., Inc. v. Briggs & Stratton Pwr. Prods. Grp., LLC
` 879 F.3d 1332 (Fed. Cir. 2018)................................................................................................... 8
`
`Fractus, S.A. v. AT&T Mobility LLC
` 2019 WL 1641357 (E.D. Tex. Apr. 16, 2019) ............................................................................ 9
`
`General Elec. Co. v. Nintendo Co.
` 179 F.3d 1350 (Fed. Cir. 1999)................................................................................................. 11
`
`Halliburton Energy Servs., Inc. v. M-I LLC
` 514 F.3d 1244 (Fed. Cir. 2008)............................................................................................... 4, 5
`
`Home Diagnostics, Inc. v. LifeScan, Inc.
` 381 F.3d 1352 (Fed. Cir. 2004)................................................................................................. 19
`
`i4i Ltd. P’ship v. Microsoft Corp.
` 598 F.3d 8331 (Fed. Cir. 2010)................................................................................................... 3
`
`In re Varma
` 816 F.3d 1352 (Fed. Cir. 2016)........................................................................................... 13, 15
`
`Info-Hold, Inc. v. Applied Media Techs. Corp.
` 783 F.3d 1262 (Fed. Cir. 2015)................................................................................................. 19
`
`Interval Licensing LLC v. AOL, Inc.
` 766 F.3d 1364 (Fed. Cir. 2014)............................................................................................... 6, 8
`
`Invitrogen Corp. v. Biocrest Mfg., L.P.
` 424 F.3d 1374 (Fed. Cir. 2005)................................................................................................... 5
`
`iii
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`

`

`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8109 Filed 11/14/22 Page 6 of 35
`
`Kara Tech. Inc. v. Stamps.com Inc.
` 582 F.3d 1341 (Fed. Cir. 2009)................................................................................................. 18
`
`Liebel-Flarsheim Co. v. Medrad, Inc.
` 358 F.3d 898 (Fed. Cir. 2004)................................................................................................... 19
`
`Midwest Athletics & Sports All. LLC v. Xerox Corp.
` No. 6:19-CV-06036 EAW, 2020 WL 7692767 (W.D.N.Y. Dec. 28, 2020) .............................. 4
`
`Nalpropion Pharms., Inc. v. Actavis Labs. FL, Inc.
` 934 F.3d 1344 (Fed. Cir. 2019)................................................................................................. 18
`
`Nevro Corp. v. Boston Scientific Corporation
` 955 F.3d 35 (Fed. Cir. 2020)....................................................................................................... 5
`
`Orthokinetics, Inc. v. Safety Travel Chairs, Inc.
` 806 F.2d 1565 (Fed. Cir. 1986)................................................................................................... 9
`
`Pall Corp. v. Micron Separations, Inc.
` 66 F.3d 1211 (Fed. Cir. 1995)..................................................................................................... 7
`
`Phoenix Licensing, L.L.C. v. AAA Life Ins. Co.
` 2015 WL 1813456 (E.D. Tex. Apr. 20, 2015) .......................................................................... 25
`
`Rexnord Corp. v. Laitram Corp.
` 274 F.3d 1336 (Fed. Cir. 2001)................................................................................................... 3
`
`Seabed Geosolutions (US) Inc. v. Magseis FF LLC
` 8 F.4th 1285 (Fed. Cir. 2021) ..................................................................................................... 3
`
`Shoes by Firebug LLC v. Stride Rite Children’s Group, LLC
` 962 F.3d 1362 (Fed. Cir. 2020)................................................................................................. 27
`
`St. Lawrence Comms., LLC v. ZTE Corp.
` 2016 WL 6275390 (E.D. Tex. Oct. 25, 2016) ........................................................................ 8, 9
`
`Tinnus Enterprises, LLC v. Telebrands Corp.
` No. 6:16-CV-33-RWS-JDL, 2017 WL 2666254 (E.D. Tex. Feb. 14, 2017) .............................. 4
`
`Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp.
` 587 F.3d 1339 (Fed. Cir. 2009)................................................................................................. 18
`
`iv
`
`

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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8110 Filed 11/14/22 Page 7 of 35
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`I.
`
`INTRODUCTION
`
`Neo Wireless disagrees with Dell’s proposed constructions, which are inconsistent with
`
`the terms’ respective plain and ordinary meanings, and unsupported by any basis in the
`
`specification or prosecution history. Likewise, Dell has fallen short of its burden to show that
`
`any of the terms are indefinite. Finally, the Court should reject Dell’s inconsistent position with
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`respect to the preambles in the ’517 and ’908 patents.
`
`II. ARGUMENT
`
`A.
`
`Disputed Terms from U.S. Patent 8,467,366
`
`1.
`
`“the ranging signal is formed from a ranging sequence selected from a set
`of ranging sequences [associated with the cell] for identifying the mobile
`station”
`
`
`
`Dell
`
`Neo Wireless
`
`
`
`The ranging signal is formed from a ranging sequence selected by the mobile
`station from a set of ranging sequences [associated with the cell] for
`identifying the mobile station
`
`Plain and ordinary meaning, and no construction necessary.
`
`Dell’s proposed construction should be rejected because it improperly limits the claim to
`
`a particular embodiment to the exclusion of others within the scope of the term’s plain and
`
`ordinary meaning. In particular, Dell rewrites the claim to require a selection “by the mobile
`
`station” of the ranging sequence from the set of ranging sequences. Op. Br. at 1–3. Dell is
`
`incorrect at least because (1) the proposed construction is unnecessary to clarify the meaning of
`
`the plain language of the claim, (2) the preambles do not necessitate Dell’s construction, and (3)
`
`the proposed construction improperly limits the claim to a single, cherry-picked embodiment.
`
`The claim term says exactly what it means: that “the ranging signal is formed from a
`
`ranging sequence selected from a set of ranging sequences….” Dell does not contend that the
`
`plain language has some special meaning or requires clarification to be comprehensible to a
`
`1
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`

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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8111 Filed 11/14/22 Page 8 of 35
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`POSITA or the jury. In fact, Dell does not alter, omit, or replace a single word from the claim
`
`language. The only change Dell makes to the claim language is the insertion of a self-serving
`
`phrase: “by the mobile station.” This is not only unnecessary but also completely tangential to
`
`the import of the claim term. The claim term specifies how the ranging sequence is formed, yet
`
`Dell’s proposed construction attempts to narrow the claim based on what does the selecting of
`
`the ranging sequence. Thus, the Court should reject the proposed construction as unnecessary.
`
`Nor do Dell’s arguments relying on the preamble justify this arbitrary limitation on the
`
`claims. Dell argues that “all of the actions and requirements in [the asserted claims] are
`
`necessarily the actions and requirements of the mobile station.” Op. Br. at 2. But this
`
`oversimplification ignores the structure of the claims. As written, the claims organize the
`
`features of the mobile device into two components/steps, each of which perform the recited
`
`actions, such as “to transmit a ranging signal.” The subsequent “wherein” clauses—including the
`
`one at issue here—specify required features not of the mobile station, but of the “ranging signal”
`
`and the “ranging subchannel.” Dell now asks the Court to ignore these organizational features of
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`the claim to require “the mobile station” to perform an additional act of “selecting” “the ranging
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`sequence.” But nothing in the claim structure prohibits an entity other than the mobile station
`
`from having selected the ranging sequence prior to the mobile station’s transmission of the
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`ranging signal. Instead, this claim term merely specifies how the ranging signal is formed: “from
`
`a ranging sequence selected from a set of ranging sequences.”
`
`Further, Dell cannot justify its improper narrowing of the claims to a single embodiment
`
`on any disavowal or intention by the patentees to limit their inventions to that embodiment. Dell
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`cites to the specification’s description of a mobile station selecting a ranging sequence. But there
`
`is no disclosure in that portion of the specification (nor anywhere else in the record) that the
`
`2
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8112 Filed 11/14/22 Page 9 of 35
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`mobile station is required to make that selection. See e.g., Seabed Geosolutions (US) Inc. v.
`
`Magseis FF LLC, 8 F.4th 1285, 1288 (Fed. Cir. 2021) (“[S]ilence does not support reading the
`
`claims to exclude [embodiment]”). Indeed, notwithstanding that preferred embodiment, when
`
`drafting the claims, the patentees chose not to include any selection step in the claimed method,
`
`and instead merely required the ranging sequence be “selected from” a set of ranging sequences.
`
`A POSITA would recognize this choice to not limit the claims to selection by the mobile station,
`
`and understand that other entities, including the recited base station, could make the selection in
`
`a variety of circumstances. Alberth Decl. at ¶¶ 22–24; see also i4i Ltd. P’ship v. Microsoft Corp.,
`
`598 F.3d 8331, 843 (Fed. Cir. 2010) (“Had the inventors intended [the selection to be a step
`
`performed by the mobile device], they could have drafted the claims to expressly include it.”).
`
`Thus, Dell’s proposed construction should be rejected at least because it narrows the claim
`
`beyond the term’s full scope under its plain and ordinary meaning.
`
`Finally, Dell’s construction is not necessary to find the claim definite. 1 Dell’s reliance on
`
`an alleged “lack” of disclosure is not sufficient to find indefiniteness. First, it is well established
`
`that not every specific embodiment covered by the claims need be disclosed in the specification.
`
`See e.g., Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1344 (Fed. Cir. 2001) (“Our case law
`
`is clear that an applicant is not required to describe in the specification every conceivable and
`
`possible future embodiment of his invention.”). Further, even if the specification includes an
`
`
`1 In addition to the substantive reasons why Dell’s construction should be rejected, Dell also
`should not have the benefit of argument by ambush by failing to disclose that it intended to argue
`that this term was indefinite (even if in the alternative). During the exchange of terms and
`proposals leading up to briefing, nowhere did Dell indicate they would argue this term is
`indefinite. The sole mention of Dell’s contention that this term may be indefinite is in Dell’s
`Preliminary Invalidity Contentions in a list of ten other terms, only one of which was actually
`selected and disclosed as being indefinite during this claim construction process. Indeed, Dell
`seemed capable of disclosing their positions of indefiniteness for other terms during the
`exchanges, but opted not to disclose this position until Dell’s Opening Brief.
`
`3
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`

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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8113 Filed 11/14/22 Page 10 of 35
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`embodiment describing a mobile station making this selection, Dell cannot point to any
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`disclaimer of all other ways. The only argument Dell can muster is that it is “unclear how such
`
`an embodiment would work,” Op. Br. at 3, but a POSITA would readily understand how a base
`
`station could select the sequence instead of the mobile station. Alberth Decl. at ¶¶ 23–24. Indeed,
`
`it would have been well known how a base station would select a random access preamble for a
`
`mobile station to avoid contention between mobile stations that may subsequently request access
`
`to the base station. Id. In both scenarios where a mobile station or the base station selects the
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`ranging sequence, the mobile station would still use the ranging signal to establish a connection
`
`with the base station. Id.
`
`Dell’s final argument relying on Halliburton is also deficient. As an initial matter,
`
`Halliburton predates Nautilus and its arguments and reasoning are based on an outdated standard
`
`of indefiniteness. See e.g., Midwest Athletics & Sports All. LLC v. Xerox Corp., No. 6:19-CV-
`
`06036 EAW, 2020 WL 7692767, at *16 (W.D.N.Y. Dec. 28, 2020) (recognizing Halliburton’s
`
`overruling); see also Tinnus Enterprises, LLC v. Telebrands Corp., No. 6:16-CV-33-RWS-JDL,
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`2017 WL 2666254, at *2 (E.D. Tex. Feb. 14, 2017) (rejecting “[d]efendants’ infringement-based
`
`test for indefiniteness [as] improper”).
`
`Further, Dell is also incorrect because a POSITA would, with reasonable certainty, be
`
`able to determine if a used ranging sequence was “selected from” 2 a set of ranging sequences.
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`Alberth Decl. at ¶¶ 22–24. Dell fearmongers by arguing that if its own specific, self-serving
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`limitation (the selection being performed only by the mobile station) is not adopted, then the lack
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`of a limit on what or who does the selecting renders infringement unknowable. But Dell’s
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`2 Dell confuses the argument by calling the limitation the “‘selected by’ limitation” even though
`that phrase appears nowhere in the claims.
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`4
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8114 Filed 11/14/22 Page 11 of 35
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`hypothetical scenario (which simply presupposes that the alleged POSITA “may” not know how
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`the ranging sequence was selected) is inapposite. First, Dell does not allege that infringement in
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`this case turns on such an unknowable scenario, so the Court simply need not resolve
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`hypothetical disputes over claim scope that have no bearing on this case. Second, just because
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`the selection of the ranging sequence may not be readily known, it does not mean the claim
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`cannot be applied to the accused products to determine infringement with reasonable certainty.
`
`These claims do not, as in Halliburton, use language that is so ambiguous as to make
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`infringement unknowable. See Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1256
`
`(Fed. Cir. 2008). Dell describes a scenario where, at worst, infringement may be hard to prove,
`
`not where it is uncertain. See Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1384 (Fed.
`
`Cir. 2005) (“[Dell] is really talking about the difficulty of avoiding infringement, not
`
`indefiniteness of the claim. The test for indefiniteness does not depend on a potential infringer’s
`
`ability to ascertain the nature of its own accused product to determine infringement, but instead
`
`on whether the claim delineates to a skilled artisan the bounds of the invention.” (quotations
`
`omitted)); Nevro Corp. v. Boston Scientific Corporation, 955 F.3d 35, 39-40 (Fed. Cir. 2020)
`
`(“The test for indefiniteness is not whether infringement of the claim must be determined on a
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`case-by-case basis.”).
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`Finally, even if an unbounded set of potential “selectors” raised an indefiniteness concern
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`(it does not), Dell still would have no basis for cherry-picking the mobile station as the sole
`
`candidate for selecting the ranging sequence. A POSITA would understand at a minimum that
`
`the claims would include a selection by another element of the OFDMA system recited in the
`
`claims, such as the serving base station, or one of the plurality of base stations within the system.
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`Alberth Decl. at ¶¶ 23–24.
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`5
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8115 Filed 11/14/22 Page 12 of 35
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`For at least these reasons, the above-recited claim term of the ’366 patent is definite and
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`should be given its plain and ordinary meaning.
`
`2.
`
`“exhibits a low peak-to-average power ratio in the time domain”
`
`Dell
`
`Indefinite.
`
`Neo Wireless
`
`
`
`Plain and ordinary meaning, and no construction necessary. To the extent
`construction is deemed necessary, “exhibits a low peak-to-average power
`ratio in the time domain” means “exhibits a peak-to-average power ratio in
`the time domain of 9dBs or less.”
`
`
`Dell has not shown by clear and convincing evidence that this term is indefinite—indeed,
`
`a POSITA would, with reasonable certainty, understand the plain and ordinary meaning of this
`
`term in the context of the patented claims and specification. “Low” is a term of degree, and
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`“[c]laim 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). “[A]bsolute or mathematical
`
`precision is not required.” Id. A POSITA would understand how to compare this claim term to
`
`real-world products and systems using the description of the patent in light of the intrinsic
`
`record.
`
`First, Dell ignores the impact of the surrounding claim language through which the term
`
`may be understood by a POSITA. Using claim 1 as an example, the “mobile station [is]
`
`configured to communicate with a serving base station in a cell via a communication channel”
`
`“[i]n a multi-cell orthogonal frequency division multiple access (OFDMA) wireless
`
`communication system.” Accordingly, a POSITA would not have to subjectively judge how
`
`“low” a peak-to-average power ratio (“PAPR”) is in a vacuum; by contrast, he or she would
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`6
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8116 Filed 11/14/22 Page 13 of 35
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`evaluate the PAPR relative to the PAPRs typically found in that specific subset of systems
`
`encompassed by the claims.
`
`Additionally, claim 1 recites that “the ranging signal is formed from a ranging sequence.”
`
`And as explained in the specification, particular ranging sequences may be applied such that the
`
`“corresponding time-domain signal [of the ranging signal] exhibits relatively low peak-to-
`
`average power ratio.” ’366 patent at 4:35–37. Again, this provides context to a POSITA in which
`
`to consider what a “low” PAPR is according to the claims. For instance, a POSITA would
`
`consider the types of reductions that known ranging sequences would have on a ranging signal
`
`circa the time of the patent and in the claimed cellular OFDMA system. Alberth Decl. at ¶ 27.
`
`Furthermore, the specification provides additional objective criteria for a POSITA to
`
`determine the meaning of this term with reasonable certainty. Dell argues the disclosure that a
`
`“relatively low peak-to-average power ratio . . . improves the power efficiency of the mobile
`
`station transmission power amplifier” does not provide any objective boundaries. Op. Br. 6. But
`
`on the contrary, the Federal Circuit has rejected any requirement of a precise numerical
`
`boundary, and this portion of the specification still provides an objective context that a POSITA
`
`could use to understand this term. See Braintree Laboratories, Inc. v. Novel Laboratories, Inc.,
`
`749 F.3d 1349, 1359–60 (Fed. Cir. 2014) (“Descriptive words like ’copious’ are commonly used
`
`in patent claims, to ‘avoid[] a strict numerical boundary to the specified parameter’” (quoting
`
`Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995)). For example, there
`
`is a practical amount of reduction in PAPR that a POSITA would consider an improvement of
`
`the efficiency of the mobile station’s transmitter. Alberth Decl. at ¶¶ 27–29.This, combined with
`
`the additional context provided by the surrounding claim language, provides sufficient objective
`
`7
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`

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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8117 Filed 11/14/22 Page 14 of 35
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`criteria from which a POSITA would understand the scope of “exhibits a low peak-to-average
`
`power ratio in the time domain.”
`
`The cases Dell relies on are distinguishable from the facts in this case. First, the GE
`
`Lighting decision “is a non-precedential decision, which is not binding, and should be read as
`
`limited to the particular claim and specification at issue in that case.” Exmark Mfg. Co., Inc. v.
`
`Briggs & Stratton Pwr. Prods. Grp., LLC, 879 F.3d 1332, 1346-47 (Fed. Cir. 2018) (finding
`
`terms analogous to those in GE Lighting not indefinite). Second, the phrase at issue in Interval
`
`Licensing was “purely subjective,” 766 F.3d at 1371, in contrast to the present phrase which is an
`
`objective relative measurement of a physical value—the PAPR of wireless transmissions. The
`
`phrase “in an unobtrusive manner that does not distract a user” at issue in Interval Licensing
`
`cannot be measured, but only determined by the subjective personal preference of the “user.” Id.
`
`at 1371. In contrast, as explained above, “exhibits a low peak-to-average power ratio in the time
`
`domain” is both measurable—PAPR is a numerical value, not merely a matter of personal
`
`feeling—and depends on objective criteria—the wireless transmission systems and methods at
`
`issue and the amount of PAPR reduction that would improve the transmission efficiency.
`
`Accordingly, Dell’s cited authority fails to provide any support for their contention of
`
`indefiniteness.
`
`Furthermore, the objective criteria Neo has identified—comparison with the
`
`communication systems and methods at issue and the practical measures of reducing the PAPR
`
`by applying sequences—are consistent with those used in other cases. For example, the term
`
`“low frequency portion” was construed to have its plain meaning despite not expressly
`
`describing any specific target frequencies or thresholds. St. Lawrence Comms., LLC v. ZTE
`
`Corp., 2016 WL 6275390, at *57–59 (E.D. Tex. Oct. 25, 2016). In particular, the court found
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`8
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8118 Filed 11/14/22 Page 15 of 35
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`that “the use of the word “low” is appropriate because the relative bandwidths and the precise
`
`manner of filtering are implementation-specific details.” Id. (citing Orthokinetics, Inc. v. Safety
`
`Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986)). Likewise, here, the ranging signal
`
`which “exhibits a low peak-to-average power ratio in the time domain” would be understood in
`
`the objective technical context of the implementation of a certain wireless system, not merely the
`
`subjective personal preference of a user. See also Fractus, S.A. v. AT&T Mobility LLC, 2019 WL
`
`1641357, at *22–24 (E.D. Tex. Apr. 16, 2019) (“Defendants have not shown, however, that the
`
`possibility of different frequency bands being defined in different ways or with different
`
`bandwidths gives rise to any lack of reasonable certainty as to the meaning of the present
`
`disputed terms. Instead, these are implementation-specific details.”).
`
`For at least these reasons, “exhibits a low peak-to-average power ratio in the time
`
`domain” should not be found indefinite, and instead, be given its plain and ordinary meaning. If
`
`the Court believes that an affirmative construction is necessary, Neo alternatively proposes that
`
`this term be construed to mean “exhibits a peak-to-average power ratio in the time domain of
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`9dBs or less.”3 As explained above, the patent provides objective criteria from which a POSITA
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`can determine whether the PAPR is “low.” At the time of the patent, a POSITA interpreting the
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`claims would consider the surrounding claim language, which recites “a mobile station” (or
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`method steps performed thereby) operating in the claimed cellular OFDMA system. Alberth
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`Decl. at ¶¶ 27–29. For a cellular OFDMA system at the time of the patent, a baseline PAPR
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`would be approximately 12dBs. Id. Further, a POSITA looking for a practical reduction in the
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`PAPR at the time of the patent using the application of sequences, as recited in the claims, would
`
`
`3 Dell’s Opening Brief does not address this alternative construction at all, but instead, only
`contends that the claim term is indefinite. Op. Br. at 4–7.
`
`9
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8119 Filed 11/14/22 Page 16 of 35
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`recognize a reduction of 3dBs or more to improve the efficiency of the transmitter. Id., see also
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`¶¶ 30–33.
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`Accordingly, a POSITA would understand the plain and ordinary meaning of the term to
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`mean that a “low” PAPR would be a PAPR of 9dBs or less—corresponding to a marked
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`reduction of the PAPR that practically impacts the transmission efficiency in the contemplated
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`systems of the patented claims. Thus, Neo’s alternative construction is consistent with the term’s
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`plain and ordinary meaning and supported by the patent.
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`B. Disputed Terms from U.S. Patent No. 10,044,517
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`1.
`
`Preambles
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`“A method for a mobile device to receive data packets in an orthogonal frequency division
`multiple access (OFDMA) wireless communication system operating on multiple radio-frequency
`(RF) bands, the method comprising” – claim 1
`Dell
`Preamble is not limiting.
`
`Neo Wireless
`
`Preamble is limiting.
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`“A mobile device in an orthogonal frequency division multiple access (OFDMA) wireless
`communication system operating on multiple radio-frequency (RF) bands, the mobile device
`comprising:” – claim 13
`Dell
`Preamble is not limiting.
`
`Neo Wireless
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`Preamble is limiting.
`
`
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`
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`Dell agrees that the preambles for the ’366, ’450, and ’941 patents are limiting. Yet, Dell
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`argues that the ’517 preambles merely “state an intended purpose,” despite the clear parallels to
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`the agreed-upon patent preambles. Op. Br. at 10. Dell even seems to concede that at least the
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`term “mobile device” in the preambles is limiting, since, as in the agreed preambles, it provides
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`antecedent basis for the body of the claim. Op Br. at 7–8. But Dell offers no reasoned basis why
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`the mobile device should be spliced from the remainder of the preamble. On the contrary, the
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`10
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`Case 2:22-md-03034-TGB ECF No. 98-2, PageID.8120 Filed 11/14/22 Page 17 of 35
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`mobile device of the claims does not exist in a vacuum, but is one that operates on the OFDMA
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`system described in the remainder of the preambles. So those additional limitations, too, provide
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`antecedent basis for the “mobile device” referenced in the body of the claims.
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`Moreover, the ’517 preambles (just like the ’366 preambles Dell agreed are limiting) also
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`“recite essential structure” by specifying that the inventions are to operate on a multi-cell
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`OFDMA system with given characteristics. Further still, just as the ’366 preambles specify the
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`composition of the OFDMA system, the ’517 preambles specify that the OFDMA system must
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`“operate[] on multiple [RF] bands.” This provides a meaningful limitation to the apparatuses and
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`methods recited by excluding devices and methods that can only be used on OFDMA systems
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`operating on a single RF band. Indeed, the ’517 patent specification’s disclosure describes at
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`great length the advantages of using of multiple frequency bands to allow for greater integration
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`of wireless services. See e.g., ’517 patent at 5:18–19, 5:32–36, 8:57–62. This indicates that this
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`limitation is not merely a throwaway statement of intended use, but a key aspect of the claimed
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`invention. See General Elec. Co. v. Nintendo Co., Ltd., 179 F.3d 1350, 1361–62 (Fed. Cir. 1999)
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`(claim scope limited to “raster scanned display device” recited in preamble, rather than display
`
`