Case 2:17-cv-00561-JRG Document 71 Filed 05/22/18 Page 1 of 5 PageID #: 762
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
`
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`§§§§
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`
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`FRACTUS, S.A.
`
`
`
`
`
`Plaintiff,
`
`
`v.
`
`ZTE CORPORATION, ZTE (USA),
`INC., ZTE (TX), INC.
`
`
`
`Defendants.
`
`
`
`
`Civil Action No. 2:17-CV-00561
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`§§§
`
`
`
`§§§§§
`
`
`P.R. 4-3 JOINT CLAIM CONSTRUCTION STATEMENT
`
`Pursuant to the Court’s Docket Control Order (Dkt. No. 53) and Local Patent Rule 4-3,
`
`Plaintiff Fractus, S.A. (“Fractus”) and Defendant ZTE (USA), Inc. (“ZTE”) hereby submit their
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`Joint Claim Construction and Prehearing Statement. The claim construction hearing on August 14,
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`2018 is scheduled to address seven patents: U.S. Patent Nos. 7,394,432 (the “’432 Patent”);
`
`7,397,431 (the “’431 Patent”); 8,941,541 (the “’541 Patent”); 8,976,069 (the “’069 Patent”);
`
`9,054,421 (the “’421 Patent”); 9,240,632 (the “’632 Patent”); and 9,362,617 (the “’617 Patent”).
`
`I.
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`P.R. 4-3(a) Agreed Claim Constructions
`
`See Exhibit A for the Parties’ agreed constructions.
`
`II.
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`P.R. 4-3(b) Proposed Constructions for Terms in Dispute
`
`See Exhibit B for a chart showing the Parties’ proposed constructions with intrinsic and
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`extrinsic evidence supporting such constructions. All Parties reserve the right to rely upon any
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`intrinsic or extrinsic evidence identified by any other Party, and any evidence obtained through
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`claim construction discovery. In addition, each Party reserves the right to amend, correct, or
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`supplement its claim construction positions and supporting evidence in response to any change of
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`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0001
`
`

`

`Case 2:17-cv-00561-JRG Document 71 Filed 05/22/18 Page 2 of 5 PageID #: 763
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`position by any other Party, or for other good cause.
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`III.
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`P.R. 4-3(c) Anticipated Length of Time for Claim Construction Hearing
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`The parties propose that each side receive 90 minutes for oral argument on claim
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`construction issues.
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`IV.
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`P.R. 4-3(d) Anticipated Witnesses at the Claim Construction Hearing
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`No Party will call any live witnesses at the claim construction hearing. Fractus reserves the
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`right to rely on the written expert testimony of Dr. Stuart Long in the event that: (1) ZTE argues
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`certain terms or phrases are indefinite; or (2) in rebuttal, should ZTE rely on the testimony of
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`expert witnesses to support its claim constructions. ZTE reserves the right to rely on the written
`
`expert testimony of Dr. Chris G. Bartone, P.E. Dr. Bartone may testify about his background, the
`
`background of the subject matter discussed in the Asserted Patents, and the level of one of ordinary
`
`skill in the art. In addition, Dr. Bartone may also offer testimony in response or in rebuttal to any
`
`arguments or expert testimony offered by Fractus or Fractus’ expert. Dr. Bartone is also expected
`
`to testify as to what one of ordinary skill in the art would understand the terms “radio electric
`
`behavior substantially similar,” “substantially similar impedance level and radiation pattern,” and
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`“substantially similar combined amount or resistance and reactance,” to mean when viewed in light
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`of the specifications of the Asserted Patents and their file histories.
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`V.
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`P.R. 4-3(e) Other Issues to be Addressed at Claim Construction Prehearing
`Conference
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`The parties are not aware of any other issues at this time that might be appropriately
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`addressed at a prehearing conference prior to the Claim Construction Hearing.
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`2
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`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0002
`
`

`

`Case 2:17-cv-00561-JRG Document 71 Filed 05/22/18 Page 3 of 5 PageID #: 764
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`DATED: May 22, 2018
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`Respectfully submitted,
`
`/s/ Blaine Larson
`Max L. Tribble
`TX State Bar No. 20213950
`mtribble@susmangodfrey.com
`Justin A. Nelson
`TX State Bar No. 24034766
`jnelson@ susmangodfrey.com
`SUSMAN GODFREY L.L.P.
`1000 Louisiana, Suite 5100
`Houston, TX 77002-5096
`Telephone: (713) 651-9366
`Facsimile: (713) 654-6666
`
`Genevieve Vose Wallace
`WA State Bar No. 38422
`gwallace@susmangodfrey.com
`SUSMAN GODFREY L.L.P.
`1201 Third Avenue, Suite 3800
`Seattle, WA 98101-3000
`Telephone: (206) 516-3880
`Facsimile: (206) 516-3883
`
`Michael F. Heim
`TX State Bar No. 09380923
`mheim@hpcllp.com
`Leslie V. Payne
`TX State Bar No. 00784736
`lpayne@hpcllp.com
`Blaine A. Larson
`TX State Bar No. 24083360
`blarson@hpcllp.com
`Alden G. Harris
`TX State Bar No. 24083138
`aharris@hpcllp.com
`HEIM, PAYNE & CHORUSH, LLP
`1111 Bagby St. Ste. 2100
`Houston, Texas 77002
`Telephone: (713) 221-2000
`Facsimile: (713) 221-2021
`
`T. John Ward, Jr. (Texas Bar No. 00794818)
`jw@wsfirm.com
`Claire Abernathy Henry (Texas Bar No. 24053063)
`claire@wsfirm.com
`WARD, SMITH & HILL, PLLC
`P.O. Box 1231
`Longview, Texas 75606-1231
`Telephone (903) 757-6400
`Facsimile (903) 757-2323
`
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`3
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`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0003
`
`

`

`Case 2:17-cv-00561-JRG Document 71 Filed 05/22/18 Page 4 of 5 PageID #: 765
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`S. Calvin Capshaw (Texas Bar No. 03783900)
`ccapshaw@capshawlaw.com
`Elizabeth L. DeRieux (Texas Bar No. 05770585)
`ederieux@capshawlaw.com
`CAPSHAW DERIEUX LLP
`114 E. Commerce Ave.
`Gladewater, TX 75647
`Telephone: (903) 236-9800
`Facsimile: (903) 236-8787
`
`Attorneys for FRACTUS, S.A.
`
`/s/ Andrea Shoffstall
`James R. Sobieraj (IL Bar No. 6183779)
`jsobieraj@brinksgilson.com
`Andrea Shoffstall (IL Bar No. 6324647)
`pro hac vice
`ashoffstall@brinksgilson.com
`BRINKS GILSON & LIONE
`455 N. Cityfront Plaza Drive
`NBC Tower, Suite 3600
`Chicago, Illinois 60611-5599
`Phone: (312) 321-4200
`Fax: (312) 321-4299
`
`Everett Upshaw
`State bar of Texas No. 24025690
`everttupshaw@upshawpllc.com
`Keana T. Taylor
`State Bar of Texas No. 24042013
`keanataylor@upshawpllc.com
`Erik Dykema
`New York Bar No. 4882460
`erikdykema@upshawpllc.com
`Craig Uhrich
`State Bar of Texas No. 24033284
`craiguhrich@upshawpllc.com
`UPSHAW PLLC
`1204 Gano Street
`Dallas, Texas
`Phone: (972) 920-8000
`Fax: (972) 920-8001
`
`Attorneys for Defendant ZTE (USA), Inc.
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`4
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`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0004
`
`

`

`Case 2:17-cv-00561-JRG Document 71 Filed 05/22/18 Page 5 of 5 PageID #: 766
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`CERTIFICATE OF SERVICE
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`I hereby certify that the underlying notice has been served to all counsel of record via
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`CM/ECF.
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` /s/ Blaine Larson
` Blaine Larson
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`5
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`ZTE v. Fractus
`IPR2018-01461
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`ZTE
`Exhibit 1008.0005
`
`

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`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 1 of 38 PageID #: 767
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`Exhibit A – Agreed Constructions
`
`Term
`“non-convex geometric element”
`
`’617: 17
`
`“convex geometric element”
`
`’617: 17
`
`
`“fraction of a total perimeter or a total area”
`
`’421: 1, 11
`
`“monopole configuration”
`
`’617: 17, 19
`
`
`Agreed Construction
`“a geometric element that is not convex”
`
`“a geometric element in which each straight
`line joining each set of two points within the
`geometric element or on the boundary of the
`geometric element lies wholly inside or on the
`boundary of the geometric element”
`
`“less than 50% of a total perimeter or a total
`area”
`
`“an antenna comprising a radiating element
`and a ground plane, wherein a practical
`application, the ground plane is not infinite,
`and further where the antenna would produce a
`radiation pattern approximating that of an
`electric dipole in the half-space above the
`ground plane if the ground plane was infinite”
`
`
`
`
`
`
` 
`
`
`
`1 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0006
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 2 of 38 PageID #: 768
`
`Term
`“multilevel
`structure”
`
`’431: 1, 14, 30
`
`’432: 1, 6
`
`’541: 17
`
`
`Exhibit B – Disputed Constructions
`
`Fractus’ Evidence
`Fractus: “A structure for an antenna
`useable at multiple frequency bands
`with at least two levels of detail,
`wherein one level of detail makes up
`another level. These levels of detail
`are composed of polygons
`(polyhedrons) of the same type with
`the same number of sides (faces)
`wherein most of the polygons
`(polyhedrons) are clearly visible and
`individually distinguishable and
`most of the polygons (polyhedrons)
`having an area of contact,
`intersection or interconnection with
`other elements (polygons or
`polyhedrons) that is less than 50% of
`the perimeter or area.”
`
`Intrinsic Evidence:
`
`Specification (’432 patent):
` “Although they are not fractal,
`multilevel antennae are
`characterized in that they
`comprise a number of elements
`which may be distinguished in
`the overall structure.” 2:36-39.
` “Thus, the main characteristic of
`multilevel antennas are the
`following:
`o A multilevel geometry
`comprising polygon or
`polyhedron of the same
`class, electromagnetically
`coupled and grouped to form
`a larger structure. In
`multilevel geometry most of
`these elements are clearly
`visible as their area of
`contact, intersection or
`interconnection (if these
`exist) with other elements is
`always less than 50% of their
`
`ZTE’s Evidence
`ZTE: “a structure for an antenna
`useable at multiple frequency bands
`with at least two levels of detail,
`wherein one level of detail makes up
`another level. These levels of detail
`are composed of polygons
`(polyhedrons) of the same type with
`the same number of sides (faces)
`wherein most (i.e., more than 75%)
`of the polygons (polyhedrons) are
`clearly visible and individually
`distinguishable and most (i.e., more
`than 75%) of the polygons
`(polyhedrons) having an area of
`contact, intersection or
`interconnection with other elements
`(polygons or polyhedrons) that is
`less than 50% of the perimeter or
`area.”
`
`Polygon: “a closed plane figure
`bounded by straight lines or closed
`plane bound by a circle or an ellipse”
`
`Polyhedron: “a closed solid figure
`bounded by polygons”
`
`Intrinsic:
`
`’432 Patent, Col. 2, 44 - Col. 5, 45
`and associated figures.
`
`’432 Patent ex parte reexamination,
`Control No. 90/013024,
`Determination--Reexam Ordered
`(11/01/2013), page 12; Non-Final
`Action (10/17/2014), page 4.
`
`’432 Patent inter parte
`reexamination, Control No.
`95/001483, Action Closing
`Prosecution (08/02/2012), page 12.
`
`
` 
`
`2 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0007
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 3 of 38 PageID #: 769
`
`’431Patent inter parte
`reexamination, Control No.
`95/001482, Applicant
`Arguments/Remarks made in an
`Amendment, (08/15/2011), page 16.
`
`’431 Patent, inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit I-
`Puente Declaration (08/15/2011),
`pages 7-10.
`
`’431 Patent inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit III-
`Joint Declaration of Puente, Borja,
`Anguera, and Soler (08/15/2011),
`pages 6-9.
`
`
`Extrinsic:
`
`Fractus v. Samsung et al., Case No.
`6:09-CV-203 (D.I. 526, at, e.g., 18-
`19; D.I. 423, 611, 887, 889, 893, and
`901)
`
`Fractus v. Samsung et al., Case No.
`6:09-CV-203, Trial Tr. May 17,
`2011 at pp. 146-47
`
`Dictionary definition of Polygon
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`Dictionary definition of Polyhedron
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`
`perimeter.
`o The radioelectric behavior
`resulting from the geometry:
`multilevel antennae can
`present a multiband behavior
`(identical or similar for
`several frequency bands)
`and/or operate at a reduced
`frequency, which allows to
`reduce their size.” 3:30-44.
` “In specialized literature it is
`already possible to find
`descriptions of certain antennae
`designs which allow to cover a
`few bands. However, in these
`designs the multiband behavior
`is achieved by grouping several
`single band antennae or by
`incorporating reactive elements
`in the antennae (concentrated
`elements as inductors or
`capacitors or their integrated
`versions such as posts or
`notches) which force the
`apparition of new resonance
`frequencies. Multilevel antennae
`on the contrary base their
`behavior on their particular
`geometry, offering a greater
`flexibility to the antenna
`designer as to the number of
`bands (proportional to the
`number of levels of detail),
`position, relative spacing and
`width, and thereby offer better
`and more varied characteristics
`for the final product.” 3:45-57.
` “The present invention relates to
`an antenna which includes at
`least one construction element in
`a multilevel structure form. A
`multilevel structure is
`characterized in that it is formed
`by gathering several polygon or
`polyhedron of the same type (for
`example triangles,
`
`3 
`
` 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0008
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 4 of 38 PageID #: 770
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`parallelepipeds, pentagons,
`hexagons, etc., even circles or
`ellipses as special limiting cases
`of a polygon with a large number
`of sides, as well as tetrahedra,
`hexahedra, prisms, dodecahedra,
`etc. coupled to each other
`electromagnetically, whether by
`proximity or by direct contact
`between elements. A multilevel
`structure or figure is
`distinguished from another
`conventional figure precisely by
`the interconnection (if it exists)
`between its component elements
`(the polygon or polyhedron). In a
`multilevel structure at least 75%
`of its component elements have
`more than 50% of their
`perimeter (for polygons) not in
`contact with any of the other
`elements of the structure. Thus,
`in a multilevel structure it is easy
`to identify geometrically and
`individually distinguish most of
`its basic component elements,
`presenting at least two levels of
`detail: that of the overall
`structure and that of the polygon
`or polyhedron elements which
`form it. Its name is precisely due
`to this characteristic and from
`the fact that the polygon or
`polyhedron can be included in a
`great variety of sizes.” 4:51-5:6.
`PCT Application:
` “The multilevel antenna, as it
`has been described in the present
`PCT application, has a geometry
`composed of various polygons or
`polyhedrons of the same type,
`coupled to each other electrically
`through at least one point of
`contact, in which it is possible to
`distinguish at least two detail
`levels, that of the global
`
`4 
`
` 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0009
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 5 of 38 PageID #: 771
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`structure and that of the
`polygons or polyhedrons that
`form same, which is achieved
`guaranteeing that the contact or
`intersection zone of the elements
`that comprise the antenna be
`solely a fraction of the perimeter
`of said polygons or polyhedrons.
`Furthermore, in some of the
`embodiments the interaction
`between the polygons or
`polyhedrons does not occur by
`direct contact, but rather via a
`sole electromagnetic coupling.”
`FRACZTE4303454.
` “In the multilevel geometry this
`manner of connecting each
`element (the contact zone
`between the elements is lower
`than 50% of the perimeter or
`area in at least 75% of the
`polygons or polyhedrons), is
`deliberate, given that it is
`precisely in this manner how the
`multilevel antenna that has all
`the operating functions sought is
`attained.” FRACZTE4303454.
` “The multilevel geometry is in
`reality a simple concept yet
`radically different to a fractal
`geometry, given that a multilevel
`structure simply consists in
`connecting electromagnetically
`(ohmic contact or capacitive
`coupling), with any disposition
`on a plane or in space, polygons
`or polyhedrons with the same
`number of sides or faces but
`which may be of a different size
`and form, with the particularity
`that the contact zone between
`polygons or polyhedrons is less
`than 50% of the perimeter or
`area in at least 75% of the
`polygons or polyhedrons.”
`FRACZTE4303455.
`
`5 
`
` 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0010
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 6 of 38 PageID #: 772
`
` “A multilevel antenna is not an
`array of antennas but a single
`one consisting of polygons or
`polyhedrons having multiband
`performance on its own.”
`FRACZTE4303665.
`“The skilled person would deduce
`that the only conditions to
`implement multilevel geometries are
`the following: a multilevel geometry
`comprises polygons or polyhedrons
`of the same class (same number of
`sides or faces); the polygons or
`polyhedrons are electromagnetically
`coupled and grouped to form a
`larger structure; and the area of
`contact, intersection or
`interconnection (if exist) with other
`elements is always less than 50% of
`their perimeter.”
`FRACZTE4303739.
`Reexam:
`
`[Patentee] “A multilevel
`structure achieves multiband
`behavior through multiple scales
`of structural detail, and does not
`achieve multiband behavior
`through groupings of single band
`antennas or through the inclusion
`of reactive elements to force new
`resonant frequencies.” ’431
`reexam (FRACZTE0000070).
`[PTO] “Many features of a
`multilevel structure can be seen
`at col. 4 line 51 et seq., which
`starts with ‘A multilevel
`structure is characterized in
`that…’ From this, we gather
`several important characteristics:
`o A plurality of polygons of
`the same type (i.e. same
`number of sides)
`o The polygons are
`electromagnetically coupled,
`via direct contact or by close
`proximity
`
`
`
`6 
`
` 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0011
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 7 of 38 PageID #: 773
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`o At least 75 % of the elements
`(polygons) have more than
`50% of their perimeter not in
`contact with other elements
`of the structure
`o Due to the above, one can
`individually distinguish most
`of the component polygons,
`presenting at least two levels
`of detail: that of the overall
`structure, and that of the
`polygons that form it. To the
`extent this feature is not
`claimed, it appears essential
`to the definition as it is the
`very reason behind the name
`multilevel. Col. 2 lines 34-
`38, 55-59.
`o The construction materials
`and the configuration in an
`antenna (i.e. monopole,
`dipole, patch, etc.) do not
`affect the definition; the
`geometry of the structure is
`what matters. Col. 5 line 62-
`col. 6 line 22.
`These characteristics appear to be
`the most basic definition of a
`multilevel structure and come with
`the term when it is in the claims.
`Thus, so far, we take the meaning of
`‘multilevel structure’ with regards to
`the present claims to include the
`bulleted material above.” ’431
`reexam (FRACZTE4272103)
`
`Extrinsic Evidence:
`
`“A structure for an antenna useable
`at multiple frequency bands with at
`least two levels of detail, wherein
`one level of detail makes up another
`level. These levels of detail are
`composed of polygons
`(polyhedrons) of the same type with
`the same number of sides (faces)
`
`7 
`
` 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0012
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 8 of 38 PageID #: 774
`
`’617: 17, 19
`’632: 17
`
`wherein most of the polygons
`(polyhedrons) are clearly visible and
`individually distinguishable and
`most of the polygons (polyhedrons)
`having an area of contact,
`intersection or interconnection with
`other elements (polygons or
`polyhedrons) that is less than 50% of
`the perimeter or area.” Claim
`Construction Order, 6:09-CV-203,
`Dkt. No. 526, at 18-19
`(FRACZTE4302768-69).
`
`Fractus: no construction necessary.
`
`Same evidence as “multilevel
`structure.”
`
`ZTE: “a structure for an antenna
`useable at multiple frequency bands
`with at least two levels of detail,
`wherein one level of detail makes up
`another level. These levels of detail
`are composed of polygons
`(polyhedrons) of the same type with
`the same number of sides (faces)
`wherein most (i.e., more than 75%)
`of the polygons (polyhedrons) are
`clearly visible and individually
`distinguishable and most (i.e., more
`than 75%) of the polygons
`(polyhedrons) having an area of
`contact, intersection or
`interconnection with other elements
`(polygons or polyhedrons) that is
`less than 50% of the perimeter or
`area.”
`
`“Polygon”: “a closed plane figure
`bounded by straight lines or closed
`plane bound by a circle or an ellipse”
`
`“Polyhedron”: “a closed solid figure
`bounded by polygons”
`
`Intrinsic:
`
`’432 Patent, Col. 1, 20-25, Object of
`the Invention; Col. 2, 44 - Col. 5, 45
`and associated figures.
`
`
`“structure for the
`multi-band
`antenna”
`
` 
`
`
`
`
`
` 
`
`8 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0013
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 9 of 38 PageID #: 775
`
`’432 Patent ex parte reexamination,
`Control No. 90/013024,
`Determination--Reexam Ordered
`(11/01/2013), page 12; Non-Final
`Action (10/17/2014), page 4.
`
`’432 Patent inter parte
`reexamination, Control No.
`95/001483, Action Closing
`Prosecution (08/02/2012), page 12.
`
`’431Patent inter parte
`reexamination, Control No.
`95/001482, Applicant
`Arguments/Remarks made in an
`Amendment, (08/15/2011), page 16.
`
`’431 Patent, inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit I-
`Puente Declaration (08/15/2011),
`pages 7-10.
`
`’431 Patent inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit III-
`Joint Declaration of Puente, Borja,
`Anguera, and Soler (08/15/2011),
`pages 6-9.
`
`
`Extrinsic:
`
`Fractus v. Samsung et al., Case No.
`6:09-CV-203 (D.I. 526, at, e.g., 18-
`19; D.I. 423, 611, 887, 889, 893, and
`901)
`
`Fractus v. Samsung et al., Case No.
`6:09-CV-203, Trial Tr. May 17,
`2011 at pp. 146-47
`
`Dictionary definition of Polygon
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`
` 
`
`9 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0014
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 10 of 38 PageID #: 776
`
`’069: 32, 46
`’421: 1, 11
`
`Fractus: “an antenna element
`useable at more than one frequency
`band”
`
`Same evidence as “multilevel
`structure.”
`
`Dictionary definition of Polyhedron
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`ZTE “a structure for an antenna
`useable at multiple frequency bands
`with at least two levels of detail,
`wherein one level of detail makes up
`another level. These levels of detail
`are composed of polygons
`(polyhedrons) of the same type with
`the same number of sides (faces)
`wherein most (i.e., more than 75%)
`of the polygons (polyhedrons) are
`clearly visible and individually
`distinguishable and most (i.e., more
`than 75%) of the polygons
`(polyhedrons) having an area of
`contact, intersection or
`interconnection with other elements
`(polygons or polyhedrons) that is
`less than 50% of the perimeter or
`area.”
`
`Polygon: “a closed plane figure
`bounded by straight lines or closed
`plane bound by a circle or an ellipse”
`
`Polyhedron: “a closed solid figure
`bounded by polygons”
`
`Intrinsic:
`
`’432 Patent, Col. 1, 20-25, Object of
`the Invention; Col. 2, 44 - Col. 5, 45
`and associated figures.
`
`’432 Patent ex parte reexamination,
`Control No. 90/013024,
`Determination--Reexam Ordered
`(11/01/2013), page 12; Non-Final
`Action (10/17/2014), page 4.
`
`’432 Patent inter parte
`reexamination, Control No.
`95/001483, Action Closing
`
`“antenna element
`having a multi-
`band behavior”
`
` 
`
`
`
`
`
` 
`
`10 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0015
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 11 of 38 PageID #: 777
`
`Prosecution (08/02/2012), page 12.
`
`’431Patent inter parte
`reexamination, Control No.
`95/001482, Applicant
`Arguments/Remarks made in an
`Amendment, (08/15/2011), page 16.
`
`’431 Patent, inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit I-
`Puente Declaration (08/15/2011),
`pages 7-10.
`
`’431 Patent inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit III-
`Joint Declaration of Puente, Borja,
`Anguera, and Soler (08/15/2011),
`pages 6-9.
`
`
`Extrinsic:
`
`Fractus v. Samsung et al., Case No.
`6:09-CV-203 (D.I. 526, at, e.g., 18-
`19; D.I. 423, 611, 887, 889, 893, and
`901)
`
`Fractus v. Samsung et al., Case No.
`6:09-CV-203, Trial Tr. May 17,
`2011 at pp. 146-47
`
`Dictionary definition of Polygon
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`Dictionary definition of Polyhedron
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`(ZTE-FRCT0071445-48)
`ZTE: “a closed plane figure bounded
`by straight lines or closed plane
`bound by a circle or an ellipse”
`
`
`Fractus: “a closed plane figure
`bounded by straight sides, further
`including circles and ellipses, where
`a portion of a circle or ellipse is
`
`11 
`
`“geometric
`element”
`
`
`
`’431: 1, 14, 30
`
` 
`
` 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0016
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 12 of 38 PageID #: 778
`
`Intrinsic:
`
`’432 Patent, Col. 1, 20-24; Col. 2, 44
`– Col. 5, 45 and associated figures.
`
`Extrinsic:
`
`Fractus v. Samsung et al., Case No.
`6:09-cv-203 (D.I. 423, 526, 611,
`887, 889, 893, and 901)
`
`Dictionary definition of Polygon
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`’432: 1, 6
`’069: 32, 46
`’421: 1, 5-7,
`10
`’541: 17
`’617: 17
`
`
`
`
`
`
`
`
`
` 
`
`counted as one side”
`
`Intrinsic Evidence:
`
`Specification (’432 patent):
` “The present invention relates to
`antennae formed by sets of
`similar geometrical elements
`(polygons, polyhedrons) electro
`magnetically coupled and
`grouped such that in the antenna
`structure may be distinguished
`each of the basic elements which
`form it.” 1:20-24.
` “The present invention consists
`of an antenna whose radiating
`element is characterized by its
`geometrical shape, which
`basically comprises several
`polygons or polyhedrons of the
`same type.” 2:44-47.
` “That it, it comprises for
`example triangles, squares,
`pentagons, hexagons or even
`circles and ellipses as a limiting
`case of a polygon with a large
`number of sides, as well as
`tetrahedral, hexahedra, prisms,
`dodecahedra, etc. coupled to
`each other electrically (either
`through at least one point of
`contact o[r] through a small
`separation providing a capacitive
`coupling) and grouped in
`structures of a higher level such
`that in the body of the antenna
`can be identified the polygonal
`or polyhedral elements which it
`comprises.” 2:47-55.
` “In a multilevel structure all the
`component elements are
`polygons with the same number
`of sides or polyhedron with the
`same number of faces.” 5:8-11.
`Claims:
`
`’432 claim 2: “The multi-band
`
`12 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0017
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 13 of 38 PageID #: 779
`
`
`
`antenna as set forth in claim 1,
`wherein at least some of the
`plurality of geometric elements
`have perimeter regions
`comprising a curve.”
`’432 claim 3: “The multi-band
`antenna as set forth in claim 1,
`wherein at least some of the
`plurality of geometric elements
`have perimeter regions
`comprising both linear and non-
`linear portions.”
`PCT Application:
` Original claim 1 claimed “a set
`of polygonal or polyhedral
`elements of the same type (same
`number of sides or faces)
`although not necessarily of the
`same size.” FRACZTE4303400.
`’208 Patent:
` Claim 4: “The multi-band
`antenna as set forth in claim 1,
`wherein at least some polygons
`have perimeter regions
`comprising portions of circles or
`ellipses.” FRACZTE0659964.
` Claim 5: “The multi-band
`antenna as set forth in claim 1,
`wherein at least some polygons
`have both linear and non-linear
`perimeter portions.”
`FRACZTE0659964.
` Claim 20: “The multi-band
`antenna as set forth in claim 15,
`wherein at least some polygons
`include at least one nonlinear
`perimeter formed of a portion of
`a circle or ellipse and wherein
`other polygon perimeters areas
`are linear and at least one of said
`linear perimeters intersects and
`extends from said at least one
`non-linear perimeter.”
`FRACZTE0659964.
`
`
`Extrinsic Evidence:
`
` 
`
`13 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0018
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 14 of 38 PageID #: 780
`
`ZTE: “a set of straight-side polygons
`bounded by the same number of
`straight sides, or a set of figures each
`figure bound by a circle, or a set of
`figures each bound by an ellipse”
`
`Intrinsic:
` 
`’432 Patent, Col. 1, 20-24; Col. 2, 44
`– Col. 5, 45 and associated figures.
`
` 
`
` “Geometric element: polygons
`or polyhedrons.” Claim
`Construction Order, 6:09-CV-
`203, Dkt. No. 526, at 23
`(FRACZTE4302773).
` “The terms ‘geometric
`elements,’ ‘elements’ and
`‘polygon and polyhedron’ are
`used interchangeably in the
`MLV specifications.” Claim
`Construction Order, 6:09-CV-
`203, Dkt. No. 526, at 23
`(FRACZTE4302773).
` “Polygon: a closed plane figure
`bounded by straight sides,
`further including circles and
`ellipses, where a portion of a
`circle or ellipse is counted as one
`side.” Supplemental Claim
`Construction Order, 6:09-CV-
`203, Dkt. No. 901, at 6
`(FRACZTE4302816).
` “A person of ordinary skill in the
`art, reading the specification and
`claims of the MLV patents
`would understand that when
`counting the sides of a polygon,
`a ‘curved side’ consisting of a
`portion of a circle or ellipse
`should be counted as one side.”
`Supplemental Claim
`Construction Order, 6:09-CV-
`203, Dkt. No. 901, at 6
`(FRACZTE4302816).
`
`
`Fractus: no construction necessary;
`alternatively, “closed figure” means
`“a figure that begins and ends at the
`same point”
`
`Intrinsic Evidence:
`
`Same evidence as “geometric
`elements.”
`
`
`14 
`
`“a set of closed
`figures bounded
`by the same
`number of sides,
`the sides
`comprising one or
`more of straight
`lines, portions of
`circles and
`portions of
`
` 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0019
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 15 of 38 PageID #: 781
`
`
`Extrinsic:
`
`Fractus v. Samsung et al., Case No.
`6:09-cv-203 (D.I. 423, 526, 611,
`887, 889, 893, and 901)
`
`Dictionary definition of Polygon
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 903)
`
`ZTE: “second [and third] portion[s]
`being substantially inside or
`enclosed by the first portion, where
`the first portion, the second portion,
`and the third portion differ in size or
`configuration”
`
`Intrinsic:
`
`’432 Patent, Col. 1, 20-24; Col. 2, 44
`– Col. 5, 45 and associated figures.
`
`’432 Patent inter parte
`reexamination, Control No.
`95/001483, Action Closing
`Prosecution (08/02/2012), page 21.
`
`’431 Patent, inter parte
`
`Extrinsic Evidence:
`
`Same evidence as “geometric
`elements” plus the following
`dictionaries.
`
` 
`
` Mathematics Dictionary
`(“Closed figure: a shape or a
`curve that begins and ends at the
`same point.”).
`FRACZTE4302818.
` Mathematics Illustrated
`Dictionary (“Closed plane
`figure: a figure that starts at a
`point and comes back to the
`same point.”).
`FRACZTE4302821.
` The Classification of
`Quadrilaterals (“A closed figure
`is one that can be traversed by
`starting at any point of it, and
`moving continuously along the
`lines of the figure in order,
`returning to the same point
`without passing twice over any
`portion of the figure.”).
`FRACZTE4302825.
`
`
`Fractus: ’431: “the second portion
`shares a substantial number of
`geometric elements with the first
`portion”
`
`’432: “the second and third portions
`share a substantial number of
`geometric elements with the first
`portion”
`
`Intrinsic Evidence:
`
`Specification (’432 patent):
` “In specialized literature it is
`already possible to find
`descriptions of certain antennae
`designs which allow to cover a
`few bands. However, in these
`
`ellipses”
`
` 
`
`
`
`
`
`’632: 17
`
`“said second [and
`third] portion[s]
`being located
`substantially
`within the first
`portion”
`
`’431: 1
`
`’432: 1
`
`
` 
`
`15 
`
`ZTE v. Fractus
`IPR2018-01461
`
`ZTE
`Exhibit 1008.0020
`
`

`

`Case 2:17-cv-00561-JRG Document 71-1 Filed 05/22/18 Page 16 of 38 PageID #: 782
`
`reexamination, Control No.
`95/001482, Affidavit Exhibit I-
`Puente Declaration (08/15/2011),
`pages 7-10.
`
`’431 Patent inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit III-
`Joint Declaration of Puente, Borja,
`Anguera, and Soler (08/15/2011),
`pages 6-9.
`
`’431 Patent inter parte
`reexamination, Control No.
`95/001482, Affidavit Exhibit IV-
`Joint Declaration of Puente, Borja,
`Anguera, and Soler (08/15/2011),
`pages 6-9.
`
`
`Extrinsic:
`
`Dictionary definition of Within
`(Merriam-Webster’s Collegiate
`Dictionary 10th Ed. at 1359)
`
`
`designs the multiband behavior
`is achieved by grouping several
`single band antennae or by
`inc