Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 1 of 19 PageID #: 685
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`Plaintiffs,
`
`UNILOC USA, INC.,
`UNILOC LUXEMBOURG, S.A. and
`UNILOC 2017 LLC,
`
`
`
`v.
`
`SAMSUNG ELECTRONICS AMERICA, INC.
`and SAMSUNG ELECTRONICS CO. LTD.,
`
`
`
`Defendants.
`
`Plaintiffs,
`
`UNILOC USA, INC.,
`UNILOC LUXEMBOURG, S.A. and
`UNILOC 2017 LLC,
`
`
`
`v.
`
`HUAWEI DEVICE USA, INC.
`and HUAWEI DEVICE CO. LTD.,
`
`
`
`Defendants.
`
`
`Civil Action No. 2:18-cv-00040 (JRG-RSP)
`
`
`
`
`
`
`
`Civil Action No. 2:18-cv-00074 (JRG-RSP)
`
`
`
`
`
`
`
`PLAINTIFFS’ REPLY CLAIM CONSTRUCTION BRIEF
`
`
`
`Edward R. Nelson III (TX State Bar No. 00797142)
`NELSON BUMGARDNER ALBRITTON PC
`3131 West 7th Street, Suite 300
`Fort Worth, TX 76107
`Tel: (817) 377-9111
`Fax: (817) 377-3485
`Email: ed@nelbum.com
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 2 of 19 PageID #: 686
`
`Shawn Latchford (TX State Bar No. 24066603)
`NELSON BUMGARDNER ALBRITTON P.C.
`111 West Tyler Street
`Longview, Texas 75601
`Telephone: (903) 757-8449
`Email: shawn@nbafirm.com
`
`Of Counsel:
`Paul J. Hayes (MA State Bar No. 227,000)
`James J. Foster (MA State Bar No. 553,285)
`Kevin Gannon (MA State Bar No. 640,931)
`PRINCE LOBEL TYE LLP
`One International Place, Suite 3700
`Boston, MA 02110
`Tel: (617) 456-8000
`Fax: (617) 456-8100
`Email: phayes@princelobel.com
`Email: jfoster@princelobel.com
`Email: kgannon@princelobel.com
`
`ATTORNEYS FOR THE PLAINTIFFS
`
`
`
`
`
`
`
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 3 of 19 PageID #: 687
`
`
`
`Plaintiffs, Uniloc USA, Inc., Uniloc Luxembourg, S.A., and Uniloc 2017 LLC
`
`(collectively, “Uniloc”), respectfully submit this Reply Claim Construction Brief for U.S. Patent
`
`No. 6,993,049 (the “’049 patent”).
`
`In the late 1990s, short-range communication between devices, such as between in-home
`
`speakers and amplifiers, or between mobile phones and headsets, was carried out by cables or
`
`wires. Because of the obvious limitations of this approach, the industry sought to develop some
`
`form of low-power short range wireless communication, and various individual companies were
`
`working on their own solutions, to be implemented in their own devices. In 1998, a group of
`
`mobile telephony and computing companies formed the Bluetooth Special Interest Group (SIG)
`
`to design a technology specification to develop a low-cost, low-power radio-based cable
`
`replacement, which specification, if accepted universally, would enable interoperability between
`
`devices of all manufacturers.
`
`According to Bluetooth SIG’s current website, the first Bluetooth products (mobile
`
`phone, PC card, headset) did not come out, and prototypes of other devices (mouse and laptop,
`
`dongle) were not publicly demonstrated, until some point in 2000. Competing technologies,
`
`such as IEEE 802.11b, HomeRF, and 3G slowed the acceptance of the proposed Bluetooth
`
`specification.
`
`The application for the ’049 patent was filed in June 2001, claiming priority to a foreign
`
`application, filed June 2000. The embodiment the inventor used to describe and illustrate his
`
`invention was one that used 2000 Bluetooth technology. But the inventor was careful to specify
`
`the invention could be implemented in other, competing technologies:
`
`Although the present invention is described with particular reference to a
`Bluetooth system, is applicable to a range of other communication systems. ’049
`patent, 1:6-8.
`
`1
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 4 of 19 PageID #: 688
`
`As will be recognized, the general invention concept of polling HIDs via a
`broadcast channel is not restricted to Bluetooth devices and is applicable to other
`communications arrangements. Id., 3:24-28.
`
`Since 2000-01, Bluetooth technology has evolved. Although the general approach
`
`remains the same, some technical details will differ between the 2000-01 embodiment described
`
`in the specification, and the Bluetooth devices that Defendants currently import and sell.
`
`As will be seen, the major claim construction issue as to the ’049 patent is whether
`
`certain features of the disclosed 2000 Bluetooth embodiment not mentioned in the claims should
`
`be read into the claims, as limitations. Defendants want to do this to get off the hook for
`
`infringement.
`
`Defendants’ problem, however, is they cannot overcome the fundamental tenet of claim
`
`construction that limitations from an embodiment cannot be read into the claims. Phillips v.
`
`AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005)(“[A]lthough the specification often describes
`
`very specific embodiments of the invention, we have repeatedly warned against confining the
`
`claims to those embodiments.” (citations omitted)).
`
`And that is true even where the disclosed embodiment is the only one mentioned in the
`
`specification. The Federal Circuit has expressly rejected the contention that if a patent describes
`
`only a single embodiment, the claims of the patent must be construed as being limited to that
`
`embodiment. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004).
`
`Probably no other tenet is better known or more frequently litigated.
`
`There are rare exceptions, usually where the specification contains some language
`
`expressly limiting the invention or seemingly disclaiming embodiments that the language of the
`
`claims would otherwise cover. But the problem for Defendants is that this specification contains
`
`no such language, and thus their claim construction brief cites none.
`
`2
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 5 of 19 PageID #: 689
`
`The Wells declaration
`
`Huawei did not state in prior filings it would rely upon an expert declaration. Samsung
`
`did so state, but its total disclosure for each claim term consisted of the statement it would
`
`submit:
`
`Expert testimony from Dr. Jonathan Wells that one skilled in the art would
`understand [claim term] to mean [Samsung’s construction] based on a review of
`the intrinsic and extrinsic evidence.
`
`As this was obviously no disclosure at all, Uniloc requested Samsung to produce the
`
`Wells declaration, so Uniloc could discuss it in its opening claim construction brief, but Samsung
`
`refused.
`
`We do not know if the Court is willing to tolerate Samsung’s flouting of its disclosure
`
`requirements, but Uniloc asks the Court to disregard the declaration.
`
`As it happens, the declaration does not help Samsung on the issue of reading limitations
`
`from the specification into the claim. The legal principles section of the declaration (¶ ¶ 17-25)
`
`omits the above tenet, which omission allows Wells, after reading the claims on the disclosed
`
`2000 Bluetooth embodiment, to conclude – mistakenly - a “POSITA would understand” that the
`
`[claim term] should be construed as [the corresponding feature of the 2000 Bluetooth
`
`embodiment].
`
`Of course, the proper issue is not whether the claim term reads on the disclosure, but
`
`whether the claim term should be construed to exclude embodiments not in the disclosure. And
`
`if an expert is going to render that kind of testimony (which Wells did not because he could not),
`
`to be given credence he has to explain why, not simply testify “a POSITA would understand the
`
`claim excludes….”
`
`
`
`3
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 6 of 19 PageID #: 690
`
`Claim
`Term/Phrase
`
`Relevant Patent,
`Claim(s)
`
`Primary station
`
`All claims
`
`Secondary
`station
`
`All claims
`
`Uniloc’s
`Proposed
`Construction
`Ordinary
`meaning
`Ordinary
`meaning
`
`Huawei’s
`Proposed
`Construction
`Master station
`
`Samsung’s
`Proposed
`Construction
`Master station
`
`Slave station
`
`Slave station
`
`
`
`
`
`As discussed above, perhaps the most well-known canon of claim construction is claims
`
`are not limited to a preferred embodiment described in the specification – even if it is the only
`
`embodiment mentioned in the specification. Phillips, 415 F.3d at 1323; Liebel-Flarsheim, 358
`
`F.3d at 906. There are rare exceptions, where, for example, language in the specification would
`
`seem to rule out other embodiments. But Defendants apparently could find no such language in
`
`this patent – as they cited none – and neither could Uniloc.
`
`
`
`“Master/slave” is terminology used in 2000 by the Bluetooth standard. (Bluetooth now
`
`uses different terminology.) Because the ’049 patent used a then contemporary Bluetooth
`
`embodiment to provide a detailed description of the invention, in discussing the Bluetooth
`
`embodiment the description used “master” and “slave,” because those are terms Bluetooth was
`
`using. But the patent also states the invention “is applicable to a range of … communication
`
`systems” other than Bluetooth, 1:6-8, and the “general invention concept … is not restricted to
`
`Bluetooth devices and is applicable to other communications arrangements.” 3:24-28.
`
`
`
`In the section of the patent describing the invention generally, 2:18-3:4, the patent
`
`eschews “master/slave” in favor of “primary station/secondary station,” the terms the claims
`
`adopt. It thus seems the draftsman intended the claims to cover embodiments other than
`
`Bluetooth, including those that would not be characterized as “master/slave,” whatever that
`
`means. Given the frequent use of “master/slave” in describing the Bluetooth embodiment, it
`
`4
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 7 of 19 PageID #: 691
`
`would seem the draftsman would have used those terms – rather than “primary station/secondary
`
`station” – in the claims if he had intended the claims to be so limited.
`
`Claim
`Term/Phrase
`
`Relevant Patent,
`Claim(s)
`
`Inquiry message All claims
`
`Uniloc’s
`Proposed
`Construction
`Ordinary
`meaning
`
`Huawei’s
`Proposed
`Construction
`A message sent
`by a primary
`[master] station
`that allows a
`would-be
`secondary [slave]
`station to find a
`primary [master]
`station and issue
`a request to join
`a piconet
`
`Samsung’s
`Proposed
`Construction
`A message sent
`by a primary
`[master] station
`that allows a
`would-be
`secondary [slave]
`station to find a
`primary [master]
`station and issue
`a request to join
`a piconet
`
`
`
`As to “master/slave,” see discussion above.
`
`As to “sent by a primary station,” that language is already in the claims, so adding it
`
`gratuitously to this term would be redundant, and add nothing to the scope of the claims.
`
`Otherwise, Defendants’ effort to limit “inquiry” to exclude inquiries other than those that
`
`“allow a secondary station to find a primary station and issue a request to join a piconet,” runs
`
`into the same problem as above with regard to “master/slave.” “Piconet” is a Bluetooth term.
`
`No language in the specification implies the inventor intended to limit his invention to the 2000
`
`Bluetooth embodiment, and Defendants cite no such language.
`
`The described 2000 Bluetooth embodiment did utilize an inquiry for that purpose, but
`
`that would not, under well-established rules of construction, limit the claim, absent a disclaimer
`
`of other inquiries in the specification. For example, other systems could employ two or more
`
`stations that utilize the invention for transmitting information, but do not form a “piconet,” a
`
`term used to describe only Bluetooth ad hoc networks. As noted above, the specification
`
`5
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 8 of 19 PageID #: 692
`
`specifically states the invention is not limited to the Bluetooth embodiment. In addition, under
`
`the doctrine of claim differentiation that claims 5 and 9, dependent claims, are limited to
`
`Bluetooth would necessarily mean claims 2 and 8, from which they respectively depend, are not
`
`so limited.
`
`After 2000-01, the industry developed other inquiry messages, which were not used to
`
`“join a piconet,” but employed the invention to accomplish the same result as in the 2000
`
`Bluetooth embodiment. Nothing in the intrinsic record suggests that the claim should not cover
`
`later developed inquiry messages.
`
`
`
`Claim
`Term/Phrase
`
`Relevant Patent,
`Claim(s)
`
`Predetermined
`data fields
`
`All claims
`
`Uniloc’s
`Proposed
`Construction
`Ordinary
`meaning
`
`
`
`Huawei’s
`Proposed
`Construction
`The fields of a
`standard/
`conventional
`inquiry message
`
`Samsung’s
`Proposed
`Construction
`The fields of a
`standard/
`conventional
`inquiry message
`
`“Predetermined data fields,” would seem to be an easily understandable term. Further,
`
`Claim 1 reads “predetermined data fields arranged according to a first communications
`
`protocol,” and neither Defendants nor Uniloc has asked for a construction of “arranging
`
`according to a first communications protocol.” So the parties agree the phrase has an ordinary
`
`meaning.
`
`The problem with Defendants’ construction is it would gratuitously exclude from the
`
`claim messages with predetermined fields that utilize a nonstandard/nonconventional inquiry
`
`message. (And it also requires the jury to determine what inquiry messages are “standard” or
`
`“conventional.”)
`
`6
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 9 of 19 PageID #: 693
`
`As with the terms above, to construe the claims narrower than their ordinary meaning
`
`would require either a special definition in the specification or a disclaimer. Defendants cite
`
`neither.
`
`
`
`Claim
`Term/Phrase
`
`Relevant Patent,
`Claim(s)
`
`Additional data
`field (for polling)
`
`All claims
`
`Uniloc’s
`Proposed
`Construction
`Ordinary
`meaning
`
`Huawei’s
`Proposed
`Construction
`Extra field that is
`added to the
`“predetermined
`data fields” of an
`inquiry message,
`wherein the extra
`field includes an
`address of a
`secondary station
`
`Samsung’s
`Proposed
`Construction
`Extra field that is
`added to the
`“predetermined
`data fields” of an
`inquiry message,
`wherein the extra
`field includes an
`address of a
`secondary station
`
`
`
`The claim itself states this data field is in addition to the predetermined data field of an
`
`inquiry message, so the first portion of Defendants’ construction is redundant of the rest of the
`
`claim.
`
`The remaining issue is whether the address of a secondary station must appear in that
`
`field. Defendants’ construction would gratuitously rule out inquiry messages where the poll is
`
`directed to secondary stations not by specific address, but by common characteristics.
`
`
`
`Claim
`Term/Phrase
`
`Relevant Patent,
`Claim(s)
`
`Determining
`when
`
`All claims
`
`Uniloc’s
`Proposed
`Construction
`Ordinary
`meaning
`
`Samsung’s
`Proposed
`Construction
`
`
`Huawei’s
`Proposed
`Construction
`Determining the
`time that an
`additional data
`field has been
`added to the
`plurality of data
`fields
`
`7
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 10 of 19 PageID #: 694
`
`Samsung did not join in Huawei’s proposed construction, and for good reason. In the
`
`Bluetooth embodiment of the invention, the host device and the HID are synchronized to the
`
`same clock. If the host device broadcasts an inquiry message with an additional field, the HID
`
`responds “in the next-but-one half slot” of clock time. 5:36-40. So the HID does not determine
`
`the “time” the field has been added, but determines only if one has been added, and then
`
`responds immediately.
`
`
`
`Claim
`Term/Phrase
`
`Relevant Patent,
`Claim(s)
`
`Poll
`
`All claims
`
`Uniloc’s
`Proposed
`Construction
`Ordinary
`meaning
`
`
`
`Claim
`Term/Phrase
`
`Relevant Patent,
`Claim(s)
`
`Been polled
`
`All claims
`
`Polled secondary
`station
`
`1, 11
`
`Uniloc’s
`Proposed
`Construction
`Ordinary
`meaning
`
`Ordinary
`meaning
`
`Polling
`
`All claims
`
`Ordinary
`meaning
`
`
`
`Huawei’s
`Proposed
`Construction
`A message to
`which a
`connected
`secondary [slave]
`station may
`respond with a
`request to
`become active
`
`Samsung’s
`Proposed
`Construction
`A message to
`which a
`connected
`secondary [slave]
`station may
`respond with a
`request to
`become active
`
`Huawei’s
`Proposed
`Construction
`Received a poll
`that is directed to
`it
`Secondary
`station that has
`received a poll
`that is directed to
`it
`Including a poll
`directed to
`
`Samsung’s
`Proposed
`Construction
`Received a poll
`that is directed to
`it
`Secondary
`station that has
`received a poll
`that is directed to
`it
`Including a poll
`directed to
`
`8
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 11 of 19 PageID #: 695
`
`All of the above present the same issue. “Poll” and “polling” are common everyday
`
`terms. The jury does not need any assistance, and thus Uniloc believes “ordinary meaning”
`
`suffices.
`
`But what Defendants are trying to do here, as with many of the terms above, is limit the
`
`claims to unclaimed characteristics of the 2000 Bluetooth embodiment. Thus, their construction
`
`of “poll” gratuitously adds two requirements not in the claims: 1) that the secondary station be
`
`“connected”; and 2) the response include a request to “become active,” whatever that means.
`
`There is no requirement, even in the 2000 Bluetooth embodiment, that a secondary
`
`station be “connected,” whatever that means. One of the advantages of the invention is that a
`
`station not currently connected can receive a poll simply by monitoring inquiry messages, and
`
`can respond to it in the appropriate manner without “becoming active.”
`
`Both Defendants’ Brief and the Wells declaration simply read this portion of the claims
`
`on the 2000 Bluetooth embodiment, without citing any language from the specification which
`
`would exclude competing or successor technologies that the claims would otherwise seem to
`
`cover.
`
`Uniloc pointed out this shortcoming in its Opening Brief. Defendants responded that
`
`Uniloc had not identified a disclosure of other embodiments, conveniently ignoring, here as in
`
`other terms, the basic tenet of construction discussed above, citing Phillips and Leibel-
`
`Flarsheim.
`
`
`
`
`
`9
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 12 of 19 PageID #: 696
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`Uniloc’s
`Proposed
`Structure
`
`Huawei’s
`Proposed
`Structure
`
`1, 2
`
`Means [are
`provided] for
`broadcasting a
`series of inquiry
`messages
`
`A Bluetooth chip
`(3:39-40), a
`radio, an
`antenna, and a
`digital controller
`unit comprising a
`link baseband
`controller and
`microprocessor
`(3:57-64),
`collectively
`programmed to
`issue inquiry
`messages in
`accordance with
`the algorithms
`set forth at:
`FIG.2-5: 202,
`204; 1:56-57;.
`3:59-62; 4:11-18,
`21-47; 4:59-5:36;
`5:41-55, 60-67;
`6:1-6, 25-54;
`6:61-7:2.
`
`Function:
`Broadcasting a
`series of inquiry
`messages
`
`Structure: A
`Bluetooth chip
`(3:39-40), a
`radio, an
`antenna, and a
`digital controller
`unit comprising a
`link baseband
`controller and
`microprocessor
`(3:57-64),
`collectively
`programmed to
`issue inquiry
`messages in
`accordance with
`the algorithm set
`forth at 4:21-47
`and 4:59-5:6 and
`FIGS. 3-5
`
`Samsung’s
`Proposed
`Construction
`
`Function:
`Broadcasting a
`series of inquiry
`messages
`
`Structure: A
`Bluetooth chip
`(3:39-40), a
`radio, an
`antenna, and a
`digital controller
`unit comprising a
`link baseband
`controller and
`microprocessor
`(3:57-64),
`collectively
`programmed to
`issue inquiry
`messages in
`accordance with
`the algorithm set
`forth at 4:21-47
`and 4:59-5:6 and
`FIGS. 3-5
`
`
`
`
`
`
`
`
`
`
`
`
`
`10
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 13 of 19 PageID #: 697
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`Uniloc’s
`Proposed
`Structure
`
`Huawei’s
`Proposed
`Structure
`
`Means
`
`8
`
` are provided for
`receiving an
`inquiry message
`
`A Bluetooth chip
`(3:39-40), a
`radio, an
`antenna, and a
`digital controller
`unit comprising a
`link baseband
`controller and
`microprocessor
`(3:57-64),
`collectively
`programmed to
`receive an
`inquiry messages
`in accordance
`with the
`algorithms set
`forth at: FIG.6;
`4: 48-58; 5: 9-11
`5:36-59; 6:7-24.
`
`Function:
`Receiving an
`inquiry message
`
`Structure: A
`Bluetooth chip
`(3:39-40), a
`radio, an
`antenna, and a
`digital controller
`unit comprising a
`link baseband
`controller and
`microprocessor
`(3:57-64),
`collectively
`programmed to
`receive an
`inquiry messages
`in accordance
`with the
`algorithm set
`forth at 4:48-58
`
`Samsung’s
`Proposed
`Construction
`
`Function:
`Receiving an
`inquiry message
`
`Structure: A
`Bluetooth chip
`(3:39-40), a
`radio, an
`antenna, and a
`digital controller
`unit comprising a
`link baseband
`controller and
`microprocessor
`(3:57-64),
`collectively
`programmed to
`receive an
`inquiry messages
`in accordance
`with the
`algorithm set
`forth at 4:48-58
`
`
`
`Uniloc has revised its proposed structures to include those suggested by Defendants.
`
`Indefiniteness arguments.
`
`In their Responsive Claim Construction Brief, Defendants for the first time explained
`
`their indefiniteness arguments, giving Uniloc a mere seven days to respond.
`
`In its Opening Claim Construction Brief, Uniloc complained loudly about this. We
`
`pointed out Defendants had the burden of proof on this issue. We noted Defendants had refused
`
`to produce the expert testimony they would rely upon, or to give us any meaningful information
`
`about what the expert would say. We noted this left us clueless as to what the argument would
`
`be. Finally, we concluded:
`
`11
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 14 of 19 PageID #: 698
`
`In the Joint Claim Construction Statements, Uniloc cited support in the patent for the
`structures that correspond to the claimed functions. Defendants have yet to explain why
`they would disagree with Uniloc’s position.
`
`
`So Defendants have been playing hide the ball. If the Court agrees this conduct is
`
`inconsistent with what this Court expects of a party, we would ask this Court to deny these
`
`indefiniteness arguments as waived.
`
`In their Responsive Claim Construction Brief, Defendants do not even mention our
`
`complaints, seemingly believing they do not have to explain their conduct to this Court.
`
`
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`1, 2
`
`Means […] for
`adding to
`[an/each] inquiry
`message
`
`Uniloc’s
`Proposed
`Structure
`
`Huawei’s
`Proposed
`Structure
`
`The devices and
`algorithms
`described in:
`FIG. 2, FIG.5;
`4:15-18; 4:23-47;
`4-59-5:36; 6:29-
`39; 6:43-48;
`6:64-7:2.
`
`Function: adding
`to [an/each]
`inquiry message
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`Samsung’s
`Proposed
`Construction
`
`Function: adding
`to [an/each]
`inquiry message
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`
`
`The structures that correspond to this function include a Bluetooth chip (3:39-40), a
`
`radio, an antenna, and a digital controller unit comprising a link baseband controller and
`
`microprocessor (3:57-64), collectively programmed to add to a conventional inquiry message in
`
`accordance with the algorithms describing how to add an additional data field to an inquiry
`
`message set forth in, for example, 4:59-5:11 and 5:26-36, which provide a step-by-step outline,
`
`and FIG. 5, which “illustrates the insertion of a packet of broadcast data within an existing
`
`transmission slot.”
`
`12
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 15 of 19 PageID #: 699
`
`The Federal Circuit “permits a patentee to express [the required] algorithm in any
`
`understandable terms including as a mathematical formula, in prose, or as a flowchart, or in any
`
`other manner that provides structure. Finisar Corp. v. DirecTV, Inc., 523 F.3d 1323, 1340 (Fed.
`
`Cir. 2008). As stated in Typhoon Touch Technologies, Inc. v. Dell, Inc., 659 F.3d 1376, 1385
`
`(Fed. Cir. 2011): “the patent need only disclose sufficient structure for a person of skill in the
`
`field to provide an operative software program for the specified function,” citing Finisar. The
`
`above algorithms well meet that standard.
`
`“The party alleging that the specification fails to disclose sufficient corresponding
`
`structure must make that showing by clear and convincing evidence.” Tecsec v. International
`
`Business Machines Corp., 731 F.3d 1336, 1349 (Fed. Cir. 2013). That showing would require
`
`evidence that a programmer of ordinary skill in the field will not understand how to implement
`
`this function.
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`1, 8
`
`Means [...] for
`determining when
`an additional data
`field has been
`added to the
`plurality of data
`fields
`
`Uniloc’s
`Proposed
`Structure
`
`The devices and
`algorithms
`described in:
`FIG.6; 4: 48-57;
`5:: 9-11 5:36-59;
`6:7-24.
`
`Huawei’s
`Proposed
`Structure
`
`Function:
`Determining
`when an
`additional data
`field has been
`added to the
`plurality of data
`fields
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`Samsung’s
`Proposed
`Construction
`
`Function:
`Determining
`when an
`additional data
`field has been
`added to the
`plurality of data
`fields
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`The structures that correspond to this function include a Bluetooth chip (3:39-40), a
`
`radio, an antenna, and a digital controller unit comprising a link baseband controller and
`
`13
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 16 of 19 PageID #: 700
`
`microprocessor (3:57-64), collectively programmed to determine when an additional data field
`
`has been added to the data fields of a conventional inquiry message, in accordance with the
`
`algorithm set forth at, at least, 4:59-5:11, which list several ways to indicate this to HIDs, and
`
`also 5:36-41, and 6:7-24; and FIG. 5 illustrates this, as does FIG. 6.
`
`
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`Uniloc’s
`Proposed
`Structure
`
`Huawei’s
`Proposed
`Structure
`
`1, 8
`
`Means . . . for
`determining
`whether [the
`secondary
`station] has been
`polled from the
`additional data
`field
`
`The devices and
`algorithms
`described in:
`FIG.6; 4: 48-57;
`5:: 9-11 5:36-59;
`6:7-24.
`
`Function:
`Determining
`whether it [a
`slave/secondary
`station] has been
`polled from the
`additional data
`field
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`Samsung’s
`Proposed
`Construction
`
`Function:
`Determining
`whether it [a
`slave/secondary
`station] has been
`polled from the
`additional data
`field
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`
`
`The structures that correspond to this function include a Bluetooth chip (3:39-40), a
`
`radio, an antenna, and a digital controller unit comprising a link baseband controller and
`
`microprocessor (3:57-64), collectively programmed to determine whether a Bluetooth device has
`
`been polled based on the presence of an additional data field in accordance with the algorithms
`
`set forth at least at 4:59-5:11, and also 5:36-41; and FIG. 5 illustrates this. Also 6:7-24 recites
`
`“A method of polling a HID in accordance with the present invention is summarized in FIG. 6,”
`
`and continues to describe that method.
`
`14
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 17 of 19 PageID #: 701
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`1, 8
`
`Means . . . for
`responding to a
`poll when it has
`data for
`transmission to
`the primary
`station
`
`Uniloc’s
`Proposed
`Structure
`
`The devices and
`algorithms
`described in:
`FIG.6; 4: 48-57;
`5:: 9-11 5:36-59;
`6:7-24.
`
`Huawei’s
`Proposed
`Structure
`
`Function:
`Responding to a
`poll when it [a
`slave/secondary
`station] has data
`for transmission
`to the primary
`[master] station
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`Samsung’s
`Proposed
`Construction
`
`Function:
`Responding to a
`poll when it [a
`slave/secondary
`station] has data
`for transmission
`to the primary
`[master] station
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`
`
`The structures that correspond to this function include a Bluetooth chip (3:39-40), a
`
`radio, an antenna, and a digital controller unit comprising a link baseband controller and
`
`microprocessor (3:57-64), collectively programmed to respond to a pole when it has data for
`
`transmission in accordance with the algorithms set forth at least in 5:36-41, which describes just
`
`how that is done, as does 6:1-24, as illustrated in FIGs. 5 and 6.
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`Uniloc’s
`Proposed
`Structure
`
`Huawei’s
`Proposed
`Structure
`
`Samsung’s
`Proposed
`Construction
`
`3
`
`Means are
`provided for
`adding the
`additional data
`field at the end of
`a respective
`inquiry message
`
`The devices and
`algorithms
`described in:
`FIG. 2, FIG.5;
`4:15-18; 4:23-47;
`4-59-5:36; 6:29-
`39; 6:43-48;
`6:64-7:2.
`
`Function:
`Adding the
`additional data
`field at the end of
`a respective
`inquiry message
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`Function:
`Adding the
`additional data
`field at the end of
`a respective
`inquiry message
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`15
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 18 of 19 PageID #: 702
`
`The structures that correspond to this function include a Bluetooth chip (3:39-40), a
`
`radio, an antenna, and a digital controller unit comprising a link baseband controller and
`
`microprocessor (3:57-64), collectively programmed to add an additional data field at the end of
`
`an inquiry message, in accordance with the algorithms set forth at 4:59-5:11, and 5:26-41, which
`
`provide a step-by-step outline, and FIG. 5, which “illustrates the insertion of a packet of
`
`broadcast data within an existing transmission slot.”
`
`
`
`Claim Term/
`Phrase
`
`Relevant Patent,
`Claim(s)
`
`4
`
`Means are
`provided for
`including an
`indication in one
`of the
`predetermined
`data fields
`
`
`
`Uniloc’s
`Proposed
`Structure
`
`The devices and
`algorithms
`described in:
`4:62-5:6.
`
`Huawei’s
`Proposed
`Structure
`
`Function:
`Including an
`indication in one
`of the
`predetermined
`data fields
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`Samsung’s
`Proposed
`Construction
`
`Function:
`Including an
`indication in one
`of the
`predetermined
`data fields
`
`Structure: Not
`disclosed, and
`therefore
`indefinite under
`§ 112, ¶ 2
`
`The structures that correspond to this function include a Bluetooth chip (3:39-40), a
`
`radio, an antenna, and a digital controller unit comprising a link baseband controller and
`
`microprocessor (3:57-64), collectively programmed to include an indication denoting the
`
`presence of the additional data field in one of the predetermined data fields, in accordance with
`
`the algorithms set forth at least in 4:59-5:11, and 5:36-41, as well as FIG. 5.
`
`
`
`
`
`
`
`16
`
`

`

`Case 2:18-cv-00040-JRG-RSP Document 69 Filed 02/26/19 Page 19 of 19 PageID #: 703
`
`Date: February 26, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Kevin Gannon
`Paul J. Hayes
`James J. Foster
`Kevin Gannon
`PRINCE LOBEL TYE LLP
`One International Place - Suite 3700
`Boston, MA 02110
`Tel: 617-456-8000
`Email: phayes@princelobel.com
`Email: jfoster@princelobel.com
`Email: kgannon@princelobel.com
`
`Edward R. Nelson III
`ed@nelbum.com
`Texas State Bar No. 00797142
`NELSON BUMGARDNER ALBRITTON PC
`3131 West 7th Street, Suite 300
`Fort Worth, TX 76107
`Tel: (817) 377-9111
`Fax: (817) 377-3485
`
`Shawn Latchford
`shawn@nbafirm.com
`Texas State Bar No. 24066603
`NELSON BUMGARDNER ALBRITTON P.C.
`111 West Tyler Street
`Longview, Texas 75601
`Telephone: (903) 757-8449
`Facsimile: (903) 758-7397
`
`ATTORNEYS FOR PLAINTIFFS
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that all counsel of record who have consented to electronic service are being
`served with a copy of this document via the Court’s CM/ECF system per Local Rule CV-5(a)(3)
`on February 26, 2019.
`
`
`/s/ Kevin Gannon
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`17
`
`