UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`UNILOC 2017 LLC
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`Plaintiff,
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`Defendant.
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`Case No. 2:18-cv-01732-RSM
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`PLAINTIFF’S RESPONSIVE BRIEF AND
`EVIDENCE IN SUPPORT OF CLAIM
`CONSTRUCTION
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`Due Date: April 10, 2020
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 1 of 17
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`The Honorable Ricardo Martinez
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`HTC AMERICA, INC.
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 2 of 17
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`TABLE OF CONTENTS
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`I.
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`II.
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`III.
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`INTRODUCTION ................................................................................................................... 1
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`NO EXTRINSIC EVIDENCE IS NEEDED ........................................................................... 2
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`THE COURT IS NOT REQUIRED TO DEFINE EVERY TERM JUST BECAUSE
`A PARTY DEMANDS IT ....................................................................................................... 3
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`IV.
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`DISPUTED TERMS ................................................................................................................ 4
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`A.
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`Term 1: “linked user identification module” (Claims 1, 5, 7, 10, 11, 14, 17,
`18) ................................................................................................................................ 4
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`B.
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`Means Plus Function Terms ......................................................................................... 5
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`1.
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`2.
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`3.
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`4.
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`5.
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`Term 2: “blocking means for preventing a normal operation of the
`mobile radio telephony device” terms (Claim 1) ............................................. 5
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`Term 3: “timing means for activating the blocking means in response
`to the mobile radiotelephony device being inactive during the normal
`operation of the mobile radiotelephony device for a defined period of
`time subsequent to a mounting of a linked user identification module
`inside the mobile radiotelephony device” (Claim 1)........................................ 6
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`Term 4: “deblocking means for permitting the normal operation of the
`mobile radio telephony device” (Claim 1) ....................................................... 7
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`Term 10: “locking means for facilitating an activation of the blocking
`means” (Claim 4) ............................................................................................. 7
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`Term 5: “connecting means for establishing a link between the mobile
`radiotelephony device and the linked user identification module”
`(Claim 5) .......................................................................................................... 7
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`C.
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`D.
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`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`Terms 6, 7, 8 and 9: Computer Readable Code Terms ................................................ 8
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`Term 11: “verifying a user identification module mounted inside the mobile
`radiotelephony device is linked to the mobile radiotelephony device” (Claim
`17) ................................................................................................................................ 9
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`Term 12: “link between the mobile radiotelephony device and the linked user
`identification module” (Claims 5, 6, 7, 14) .................................................................. 9
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`Term 13: “normal operation” (Claim 1, 10, 11, 13, 17, 18)....................................... 10
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`Term 14: “outgoing calls” (Claim 1, 3, 10, 13, 17) ................................................... 12
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`Term 15: “inactivity of the mobile radiotelephony device” (Claim 10, 11, 17,
`18) .............................................................................................................................. 12
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`Term 16: “mounting of a linked user identification module inside the mobile
`radiotelephony device” (Claim 1) .............................................................................. 12
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`Term 17: “mounted inside the mobile radiotelephony device” (Claim 10, 17) ......... 12
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 3 of 17
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`V.
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`CONCLUSION ...................................................................................................................... 12
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`ii
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 4 of 17
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`Cases
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`TABLE OF AUTHORITIES
`
`01 Communique Lab., Inc. v. LogMeIn, Inc.,
`687 F.3d 1292 (Fed. Cir. 2012) ...................................................................................................... 5
`
`ACTV, Inc. v. Walt Disney Co.,
`346 F.3d 1082 (Fed. Cir. 2003) .................................................................................................... 11
`
`Affymetrix, Inc. v. Hyseq, Inc.,
`132 F. Supp. 2d 1212 (N.D. Cal. 2001) ......................................................................................... 8
`
`AllVoice Comp. PLC, v. Nuance Commc’ns, Inc.,
`504 F.3d 1236 (Fed. Cir. 2007) ...................................................................................................... 5
`
`Amdocs (Israel) Limited v. Openet Telecom, Inc.,
`No. 1:10–cv–910 (LMB/JFA), 2018 WL 1699429 (E.D. Va. 2018) ............................................. 8
`
`Baldwin Graphic Sys., Inc. v. Siebert, Inc.,
`512 F.3d 1338 (Fed. Cir. 2008) ...................................................................................................... 4
`
`C.R. Bard, Inc. v. U.S. Surgical Corp.,
`388 F.3d 858 (Fed. Cir. 2004) ........................................................................................................ 3
`
`Convolve, Inc. v. Compaq Computer Corp.,
`812 F.3d 1313 (Fed. Cir. 2016) ...................................................................................................... 4
`
`Docusign Inc v. RPost Commc’ns Ltd.,
`No. C:13-735-MJP, 2014 WL 12039425 (W.D. Wash. Apr. 16, 2014) ........................................ 4
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`Finisar Corp. v. DirecTV Grp., Inc.,
`523 F.3d 1323 (Fed. Cir. 2008) .................................................................................................. 5, 6
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`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010) ............................................................................................ 3, 4, 12
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`In re Aoyama,
`656 F.3d 1293 (Fed. Cir. 2011) ...................................................................................................... 5
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`KCJ Corp. v. Kinetic Concepts, Inc.,
`223 F.3d 1351 (Fed.Cir.2000) ........................................................................................................ 4
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`Motorola Mobility, Inc. v. Microsoft Corp.,
`No. C:11-1408-JLR, 2012 WL 12519819 (W.D. Wash. June 4, 2012) ......................................... 5
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`Nat’l Prod., Inc. v. Arkon Res., Inc.,
`No. C15-1984-JLR, 2017 WL 4403328 (W.D. Wash. Oct. 2, 2017) .......................................... 11
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ...................................................................................................... 3
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ............................................................................. 2, 3, 9
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`SecurityProfiling, LLC v. Trend Micro America, Inc.,
`No. 3:17-CV-1484-N, 2018 WL 4585279 (N.D. Tex. 2018) ........................................................ 8
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`Smartflash LLC v. Apple Inc.,
`No. 6:13-CV-447-JRG-KNM, 2015 WL 4208754 (E.D. Tex. July 7, 2015) ................................ 8
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`Uniloc 2017 LLC v. Google LLC,
`No. 2:18-cv-00493-JRG-RSP, Dkt. No. 232 (E.D. Tex. Apr. 7, 2020) ......................................... 7
`
`WMS Gaming, Inc. v. Int’l Game Tech.,
`184 F.3d 1339 (Fed. Cir. 1999) ...................................................................................................... 5
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`iii
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 5 of 17
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`Pursuant to Rule 134(c) of the Local Patent Rules, Uniloc submits its Responsive Claim
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`Construction Brief regarding U.S. Patent No. 6,836,654 (“the ’654 patent”).
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`I.
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`INTRODUCTION
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`HTC’s Opening Claim Construction Brief, Dkt. No. 47 (“HTC Br.”), is most notable for
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`what it does not say. For example, HTC cites to and quotes from the Samsung court’s claim
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`construction order some half-dozen times, and to the Google court’s constructions another eight.
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`But, HTC’s Opening Brief fails to even mention that another court, Motorola, also construed the
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`terms. Neither did HTC include a copy of the Motorola court’s claim construction order among the
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`272 pages of exhibits attached to its Opening Brief. This is, presumably, because that court’s
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`constructions vitiate HTC’s proposed definitions.
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`HTC argues that the “computer readable code” terms of the ’654 patent are hidden means-
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`plus-function limitations. But, HTC’s Opening Brief fails to mention the key holding in Williamson
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`v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015) (en banc)—a case it did cite—to wit: When a
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`term lacks the word “means,” the presumption is on the party asserting means-plus-function
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`treatment, i.e., HTC, to prove that § 112, ¶ 6 should apply:
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`When a claim term lacks the word “means,” the presumption can be overcome and §
`112, para. 6 will apply if the challenger demonstrates that the claim term fails to
`“recite sufficiently definite structure” or else recites “function without reciting
`sufficient structure for performing that function.” The converse presumption remains
`unaffected: “use of the word ‘means’ creates a presumption that § 112, ¶ 6 applies.”
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`Id. at 1349 (emphasis added) (citations omitted). HTC’s failure to mention its own burden of proof
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`is, presumably, because it cannot bear that burden.
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`Finally, HTC chastises Uniloc for adapting its constructions between earlier cases and this
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`one. Indeed, HTC goes so far as to state:
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`That Uniloc’s proposed structure [for the § 112, ¶ 6 terms] has evolved during its
`litigation campaign undermines its positions in this case because corresponding
`structure is only that which the specification or prosecution clearly links to
`performing the recited function, not what fits Uniloc’s evolving litigation needs.
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`HTC Br. at 1. This is an odd charge for two reasons. First, Uniloc “evolved” its constructions
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`across cases to accept two courts’ constructions of these terms. Uniloc originally proposed more
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`detailed—and frankly narrower—constructions for the § 112, ¶ 6 terms in those cases based upon
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`CASE NO. 2:18-CV-01732-RSM
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 6 of 17
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`specific components. But, the Motorola, Google and Samsung courts each interpreted those § 112,
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`¶ 6 terms without defining them to require particular components. Uniloc recognized that those
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`constructions were, for the most part, simpler, and so largely went with them.1 Those constructions
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`were issued in January 2020, and so Uniloc’s changes came when it proposed its constructions in
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`this case in February 2020. In short, Uniloc proposed one set of constructions up until the
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`December 2019 claim construction hearings in the Motorola, Google and Samsung cases. When
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`Uniloc served its Local Patent Rule 131 disclosure of preliminary claim constructions in this case in
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`February 2020, it largely adopted those earlier courts’ January 2020 constructions.
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`Second, and what makes HTC’s allegation all the more notable is that, after chastising
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`Uniloc for “evolved” constructions, HTC revised its proposed constructions for no fewer than three
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`terms. See HTC Br. at 5 n.4, 20, 22 n.6. And, HTC made these changes since the parties submitted
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`their March 6, 2020, Joint Claim Construction Statement. So, Uniloc’s constructions have been
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`consistent in this case, while HTC’s constructions shifted in the three weeks prior to its filing of its
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`March 27, 2020, Opening Brief. Castigating Uniloc for “evolving” its constructions to match those
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`issued by the District of Delaware and Eastern District of Texas, while at the same time revising
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`three of its own in the last three weeks, is a distinct form of sanctimony.
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`17
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`II.
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`NO EXTRINSIC EVIDENCE IS NEEDED
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`It is now evident how HTC thought it could address seventeen terms in twenty-four pages of
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`Opening Brief: HTC put most of its substantive arguments into the thirty-one-page Laneman
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`declaration and his seventeen-page rebuttal declaration. In short, HTC circumvented the Court’s
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`page limitation for claim construction briefs by using fifty-one pages of expert declarations. This
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`was inappropriate as a matter of practice and futile as a matter of law.
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`As the Federal Circuit explained, the order of priority for interpreting terms is “the words of
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`the claims themselves, the remainder of the specification, the prosecution history, and extrinsic
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`evidence . . . .” Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc). To start,
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`1 HTC also complains that Uniloc’s proposed constructions “fail[] to provide any specific hardware
`for performing the recited functions.” Dkt. No. 47 at 7. Again, Uniloc’s original proposals
`identified specific hardware, but the Motorola, Google and Samsung claim construction orders
`rejected this finer level of detail in favor of “hardware” or “device,” and so Uniloc went with that.
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`CASE NO. 2:18-CV-01732-RSM
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 7 of 17
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`“the claims themselves provide substantial guidance as to the meaning of particular claim terms.”
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`Id. After the claims, the specification is usually “dispositive; it is the single best guide to the
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`meaning of a disputed term.” Phillips, 415 F.3d at 1315. Then comes the prosecution history. Id.
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`Only if necessary should the Court consider extrinsic evidence; and, even then, it is “less significant
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`than the intrinsic record in determining the legally operative meaning of claim language.” Id. at
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`1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)); see also
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`id. at 1318-19 (detailing five reasons “[w]e have viewed extrinsic evidence in general as less
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`reliable than the patent and its prosecution history in determining how to read claim terms”).
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`Within extrinsic evidence, the hierarchy begins with “dictionaries and treatises[, which] can
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`be useful in claim construction,” and ends with expert testimony. Id. at 1318. So, the extrinsic
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`evidence HTC supplies is evidence only of a last resort. Motorola, Google and Samsung too each
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`submitted expert declarations regarding claim construction. In light of the clear intrinsic evidence,
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`those declarations were (properly) given short shrift by those courts and not relied upon at all in
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`arriving at their constructions. The Lineman declarations here deserve the same treatment.
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`III. THE COURT IS NOT REQUIRED TO DEFINE EVERY TERM JUST BECAUSE A
`PARTY DEMANDS IT
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`HTC repeatedly argues that just because it disputes the meaning of a term that this court
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`must define that term:
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`Uniloc’s proposed construction of “plain and ordinary meaning” is not sufficient to
`resolve the dispute between the parties. See O2 Micro Int’l Ltd.[ v. Beyond
`Innovation Tech. Co.], 521 F.3d [1315,] 1361.
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`HTC Br. at 22 n.7, 23 n.8, 23 n.9, 24 n.10. O2 Micro says no such thing. As the Federal Circuit
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`explained in Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010), the
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`Court need only “resolve” a dispute, not define a term that requires no definition:
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`In O2 Micro, we held that the district court erred by assigning the term “only if” its
`plain and ordinary meaning because that definition “failed to resolve the parties’
`dispute.” [O2 Micro, 521 F.3d] at 1361. The parties disputed whether “only if”
`allowed for exceptions, but the district court did not answer this question, ruling that
`the phrase had “a well-understood definition.” Id. In the absence of an authoritative
`construction, the parties argued the scope of the claim term to the jury. Remanding
`the case, we explained: “When the parties raise an actual dispute regarding the
`proper scope of the claims, the court, not the jury, must resolve that dispute.” Id. at
`1360.
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 8 of 17
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`For example, in Finjan, the district court considered the parties’ competing definitions for the term
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`“addressed to a client,” rejected the defendant’s attempt to narrowly define the term and went with
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`“its plain and ordinary meaning.” Finjan, 626 F.3d at 1206-07. The Federal Circuit affirmed. See
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`also, e.g., Docusign Inc v. RPost Commc’ns Ltd., No. C:13-735-MJP, 2014 WL 12039425, at *4
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`(W.D. Wash. Apr. 16, 2014) (rejecting defendant’s proposed construction and adopting the ordinary
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`meaning for “message”). So too, this Court may accept the “plain meaning” where appropriate.
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`IV. DISPUTED TERMS
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`A.
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`Term 1: “linked user identification module” (Claims 1, 5, 7, 10, 11, 14, 17, 18)
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`HTC begins its discussion of this term by trumpeting that the Google and Samsung courts
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`“adopted the same construction.” HTC Br. at 5. This is no mean feat, given that both orders were
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`issued by the same judge on consecutive days. Rather, what is most notable about HTC’s argument
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`is what is missing, to wit: Any mention of the Motorola court, let alone its construction of this
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`term, which is 180° from HTC’s. That court defined this term as “an authorized user identification
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`module that permits the normal operation of the device.” Dkt. No. 46-3 at 3. As that court
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`recognized, “[t]here is nothing in the patent that requires that only one linked user identification
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`module will permit the normal operation of the device for all embodiments. Thus, the patent is not
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`limited to only one linked user identification module for all embodiments.” Id.
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`The term, in the broader context of claim 1, is “a mounting of a linked user identification
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`module inside the mobile radiotelephony device.” This repeated and regular use of the term “a”
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`invokes the Federal Circuit’s “rule” that “a” means “one or more”:
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`That “a” or “an” can mean “one or more” is best described as a rule, rather than
`merely as a presumption or even a convention. The exceptions to this rule are
`extremely limited: a patentee must “evince[] a clear intent” to limit “a” or “an” to
`“one.” The subsequent use of definite articles “the” or “said” in a claim to refer back
`to the same claim term does not change the general plural rule, but simply reinvokes
`that non-singular meaning. An exception to the general rule that “a” or “an” means
`more than one only arises where the language of the claims themselves, the
`specification, or the prosecution history necessitate a departure from the rule.
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`Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342-43 (Fed. Cir. 2008) (quoting KCJ
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`Corp. v. Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed.Cir.2000)) (citations omitted) (emphasis
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`added); see, e.g., Convolve, Inc. v. Compaq Computer Corp., 812 F.3d 1313, 1321 (Fed. Cir. 2016)
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`SUPPORT OF CLAIM CONSTRUCTION
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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 9 of 17
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`(“[A]bsent a clear intent in the claims themselves, the specification, or the prosecution history, we
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`interpret ‘a processor’ as ‘one or more processors.’”); 01 Communique Lab., Inc. v. LogMeIn, Inc.,
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`687 F.3d 1292, 1297 (Fed. Cir. 2012) (referring to “our well-established precedent . . . [that] [t]he
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`exceptions to this rule are extremely limited”). As discussed in Uniloc’s Opening Brief, the patent
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`specification and prosecution history support the Motorola court’s understanding. So too does the
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`doctrine of claim differentiation. See Dkt. No. 46 (“Uniloc Br.”) at 5-7.
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`B. Means Plus Function Terms
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`For § 112, ¶ 6 terms—and as noted in Uniloc’s Opening Brief at page 8—“when the
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`disclosed structure is a computer programmed to carry out an algorithm, ‘the disclosed structure is
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`not the general purpose computer, but rather that special purpose computer programmed to perform
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`the disclosed algorithm.’” In re Aoyama, 656 F.3d 1293, 1297 (Fed. Cir. 2011) (quoting WMS
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`Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999)). HTC argues that “[i]f
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`Uniloc’s proposed structure is implicating a general-purpose processor programmed to perform an
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`algorithm, it too must fail because the specification fails to clearly link the recited function to a
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`computer implementation.” HTC Br. at 7 (emphasis added). But, that is not the law (nor does HTC
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`cite to any). Rather, the patent need only disclose “enough of an algorithm to provide the necessary
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`structure under § 112, ¶ 6. [The Federal Circuit] permits a patentee to express that algorithm in any
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`understandable terms including as a mathematical formula, in prose, or as a flow chart, or in any
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`other manner that provides sufficient structure.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d
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`1323, 1340 (Fed. Cir. 2008) (citation omitted); see also, e.g., Motorola Mobility, Inc. v. Microsoft
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`Corp., No. C:11-1408-JLR, 2012 WL 12519819, at *16 (W.D. Wash. June 4, 2012) (“[T]he court is
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`mindful that ‘algorithms in the specification need only disclose adequate defining structure to
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`render the bounds of the claim understandable to one of ordinary skill in the art.’”) (quoting
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`AllVoice Comp. PLC, v. Nuance Commc’ns, Inc., 504 F.3d 1236, 1245 (Fed. Cir. 2007)).
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`1.
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`Term 2: “blocking means for preventing a normal operation of the
`mobile radio telephony device” terms (Claim 1)
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`HTC spends the bulk of its argument alleging that this term is limited to the second blocking
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`state, with a rump argument that the term is indefinite. HTC Br. at 8-9. As explained in Uniloc’s
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`5
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`CASE NO. 2:18-CV-01732-RSM
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`

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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 10 of 17
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`Opening Brief at pages 8-10, and as recognized by the Motorola, Google and Samsung courts, this
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`term is not indefinite. As also recognized by each of those three claim construction orders, the term
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`incorporates each of the three disclosed blocking states in column 3. See Dkt. No. 46-3 (Motorola
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`Claim Construction) at 4; Dkt. No. 46-4 (Google Claim Construction) at 25; Dkt. No. 46-5
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`(Samsung Claim Construction) at 31. That the other means terms might be limited to less than all
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`three blocking states does not mean in this term is similarly limited. Again, the term in full is
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`“blocking means for preventing a normal operation of the mobile radiotelephony device, wherein
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`the normal operation includes a processing of outgoing calls.” There is nothing about this term that
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`suggests it is limited to just one particular implementation of the means for preventing normal
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`operation. Each of the three blocking states disclosed in column 3 of the patent are such structures,
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`and so the Motorola, Google and Samsung courts incorporated each such algorithm into their
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`constructions. So too should this Court.
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`2.
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`Term 3: “timing means for activating the blocking means in response to
`the mobile radiotelephony device being inactive during the normal
`operation of the mobile radiotelephony device for a defined period of
`time subsequent to a mounting of a linked user identification module
`inside the mobile radiotelephony device” (Claim 1)
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`HTC alleges that this term is indefinite because the specification “merely recites functional
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`language describing when the device is in a ‘state of availability.’” HTC Br. at 10. The Motorola,
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`Google and Samsung courts disagreed, with each citing the same portion of the specification:
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`If the identification module that is placed inside the device is linked to the device
`(arrow Y4), one looks whether the device has remained in the state of availability for
`a certain period of time T of the order of several minutes, for example (box K10). If
`this is not the case (arrow N10), the device remains in the state of availability
`indicated in box K1. If this is the case (arrow Y10), the device passes on to a second
`blocking state indicated in box K11 by passing through an initialization step
`K12 which permits to initialize a variable A which represents the number of attempts
`made at supplying a deblocking code (for example, the Personal Identification
`Number) PIN.
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`Dkt. No. 46-1 at 3:31-43. This discloses a straight-forward algorithm. If the identification module
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`is in the device and the device is “in the state of availability,” then run a timer. Once the timer
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`reaches a certain point (e.g., several minutes), activate the blocking means. Nothing more is
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`needed. See Finisar, 523 F.3d at 1340.
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`CASE NO. 2:18-CV-01732-RSM
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`

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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 11 of 17
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`3.
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`Term 4: “deblocking means for permitting the normal operation of the
`mobile radio telephony device” (Claim 1)
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`Uniloc discussed this limitation at pages 11-12 of its Opening Brief. For the reasons stated
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`therein, and as recognized by the Motorola, Google and Samsung courts, this term is definite and
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`should be construed as Uniloc proposed. HTC devoted just one-half of a page of its Opening Brief
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`to this term, most of which simply cross-cites six pages of its expert’s declarations. As noted above
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`in Section II, those declarations are not good evidence and should be disregarded.
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`4.
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`Term 10: “locking means for facilitating an activation of the blocking
`means” (Claim 4)
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`As Uniloc noted in its Opening Brief at page 13, two other courts already concluded that the
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`specification does not provide sufficient support for this term, and so it is indefinite. See Dkt. No.
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`46-3 at 8-9; Dkt. No. 46-5 at 41-45. Uniloc therefore suggested that this Court not devote its
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`resources towards construing it. For undiscernible reasons, HTC devotes nearly three pages of its
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`Opening Brief to addressing this thrice-construed-as-indefinite term. HTC Br. at 12-14. In any
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`event, following his construction and Google’s subsequent motion for summary judgment,
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`Magistrate Judge Payne issued a Report and Recommendation declaring claim 4 invalid due to the
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`aforementioned indefinite limitation. See Uniloc 2017 LLC v. Google LLC, No. 2:18-cv-00493-
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`JRG-RSP, Dkt. No. 232 (E.D. Tex. Apr. 7, 2020). Judge Gilstrap already overruled Uniloc’s
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`objection to Magistrate Judge Payne’s construction, so this claim will either remain indefinite or be
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`construed by the Federal Circuit. Either way, there is no reason to construe this term.
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`5.
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`Term 5: “connecting means for establishing a link between the mobile
`radiotelephony device and the linked user identification module” (Claim
`5)
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`HTC argues that Uniloc failed to cite any portion of the specification that discloses an
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`algorithm for this term. HTC Br. at 11-12. As is evident from Uniloc’s Opening Brief at pages 13-
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`14, not to mention the conclusions of the Motorola, Google and Samsung courts, HTC is wrong.
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`See Dkt. No. 46-3 at 9; Dkt. No. 46-4 at 38; Dkt. No. 46-5 at 46.2
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`2 Perhaps it is the undersigned’s idée fixe, but HTC’s page-use is as perplexing. HTC devoted
`nearly three of its twenty-four-page Brief to arguing about the already-invalidated “linking means”
`term. It then devoted just a half-page to the “connecting means” term, a that that no other litigant
`has asserted is invalid and that was already construed in the Motorola, Google and Samsung cases.
`If anything cried out for argument, it was the latter term, which HTC’s Brief all but ignored.
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`PLAINTIFF’S RESPONSIVE BRIEF AND EVIDENCE IN
`SUPPORT OF CLAIM CONSTRUCTION
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`7
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`CASE NO. 2:18-CV-01732-RSM
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`

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`Case 2:18-cv-01732-RSM Document 49 Filed 04/10/20 Page 12 of 17
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`C.
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`Terms 6, 7, 8 and 9: Computer Readable Code Terms
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`As noted in Uniloc’s Opening Brief at page 14, and supra § I, it is HTC’s burden to
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`establish that the “computer readable code” terms are hidden means-plus-function terms, as opposed
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`to Beauregard terms. HTC’s silence about its burden speaks volumes.
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`Uniloc cited nine examples of courts rejecting the allegation that language such as, inter
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`alia, “computer-readable medium,” “computer readable storage medium,” “executable . . . code,”
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`“executable software” and “computer software” are controlled by § 112, ¶ 6. Uniloc Br. at 15 n.4.3
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`As one of those cases aptly explained:
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`The Court finds that “computer code” is not a generic term, but rather recites
`structure that is understood by those of skill in the art to be a type of device for
`accomplishing the stated functions. . . . [¶]
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`Furthermore, the Court rejects [defendant] Hyseq’s argument that computer
`code lacks any structure because it consists of data with no physical dimensions.
`Hyseq has cited no cases to support this proposition. Moreover, Hyseq’s proposition
`improperly would subject every software patent and many electronics patents to §
`112, ¶ 6. When, as here, the “means for” language is absent from a claim, the
`accused infringer has the burden of overcoming the presumption against application
`of § 112, ¶ 6. Hyseq has failed to meet its burden. The Court therefore finds that
`“computer code” has sufficient structure to escape application of § 112, ¶ 6.
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`Affymetrix, Inc. v. Hyseq, Inc., 132 F. Supp. 2d 1212, 1232 (N.D. Cal. 2001). For the same reasons,
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`this Court should find that “computer readable code” is not controlled by § 112, ¶ 6. HTC fails to
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`cite a single example to the contra, instead supporting its arguments only with its expert’s ipse dixit.
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`Each of the “computer readable code” terms connote sufficiently definite structure, and so is
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`not a nonce. See Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298-99 (Fed. Cir. 2014) (“Requiring
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`traditional physical structure in software limitations lacking the term means would result in all of
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`these limitations being construed as means-plus-function limitations and subsequently being found
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`indefinite.”); see also Zeroclick, LLC v. App