Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 1 of 25
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`§§§§
`
`§§§§§
`
`§
`
`NEO WIRELESS, LLC,
`
`Plaintiff
`
`v.
`
`DELL TECHNOLOGIES INC. and DELL
`INC.,
`
`Defendants.
`
`NO. 6:21-cv-024-ADA
`
`
`
`DEFENDANTS’ OPENING CLAIM CONSTRUCTION BRIEF
`
`Highly Restricted - Confidential
`
`1
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`GM 1039
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`

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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 2 of 25
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`TABLE OF CONTENTS
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`Page
`I. Argument .................................................................................................................................. 1
`
`A. Disputed Terms from U.S. Patent No. 8,467,366 ............................................................... 1
`
`1. “the ranging signal is formed from a ranging sequence selected from a set of ranging
`sequences [associated with the cell] for identifying the mobile station” ...................... 1
`
`2. “exhibits a low peak-to-average power ratio in the time domain” ............................... 4
`
`B. Disputed Terms from U.S. Patent No. 10,044,517 ............................................................. 7
`
`1. Preambles ...................................................................................................................... 7
`
`2. “receiving scheduling information from a serving base station, the scheduling
`information indicating an allocation of airlink resources in a first RF band and a
`second RF band” ........................................................................................................... 8
`
`3. “receive scheduling information from a serving base station, the scheduling
`information indicating an allocation of airlink resources for receiving a first signal…
`over a first RF band and a second signal … over a second RF band” .......................... 8
`
`4. “allocation of airlink resources [] for receiving a first signal with a first frame
`structure having first frame boundaries and a second signal with a second frame
`structure having second frame boundaries” ................................................................ 10
`
`5. “traffic characteristics” ............................................................................................... 12
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`C. Disputed Terms from U.S. Patent No. 10,075,941 ........................................................... 13
`
`1. “the antenna transmission scheme comprising a transmission diversity scheme or a
`multiple-input multiple-output (MIMO) scheme” ...................................................... 13
`
`2. “the mobile station-specific transmission parameters indicate […] a corresponding
`subchannel configuration […] the corresponding subchannel configuration
`characterized by distributed subcarriers or localized subcarriers in the frequency
`domain” ....................................................................................................................... 16
`
`D. Disputed Terms from U.S. Patent No. 10,447,450 ........................................................... 17
`
`1. “the segment having a starting time-frequency coordinate” ....................................... 17
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`E. Disputed Terms from U.S. Patent No. 10,833,908 ........................................................... 20
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`1. Preambles .................................................................................................................... 20
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`II. Conclusion .............................................................................................................................. 21
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`-i-
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 3 of 25
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`AK Steel Corp. v. Sollac & Ugine,
`344 F.3d 1234 (Fed. Cir. 2003)..................................................................................................3
`
`Arctic Cat Inc. v. GEP Power Prod., Inc.,
`919 F.3d 1320 (Fed. Cir. 2019)......................................................................................7, 20, 21
`
`Biosig Instruments, Inc. v. Nautilus, Inc.,
`783 F.3d 1374 (Fed. Cir. 2015)..................................................................................................5
`
`Cochlear Bone Anchored Sols. AB v. Oticon Med. AB,
`958 F.3d 1348 (Fed. Cir. 2020)..................................................................................................8
`
`GE Lighting Sols., LLC v. Lights of Am., Inc.,
`663 F. App’x 938 (Fed. Cir. 2016) ............................................................................................5
`
`Halliburton Energy Servs., Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008)..................................................................................................4
`
`In re Varma,
`816 F.3d 1352 (Fed. Cir. 2016)..................................................................................................9
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004)............................................................................................7, 20
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)..............................................................................................5, 6
`
`On Demand Mach. Corp. v. Ingram Indus., Inc.,
`442 F.3d 1331 (Fed. Cir. 2006)..................................................................................................3
`
`Poly-Am., L.P. v. API Indus., Inc.,
`839 F.3d 1131 (Fed. Cir. 2016)................................................................................................11
`
`Ruckus Wireless, Inc. v. Innovative Wireless Sols.,
`LLC, 824 F.3d 999 (Fed. Cir. 2016) ..........................................................................................3
`
`Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC,
`962 F.3d 1362 (Fed. Cir. 2020)............................................................................................8, 21
`
`-i-
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 4 of 25
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`The asserted patents in this case come from the work of inventors at Neocific, Inc. and
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`relate to wireless communications. Specifically, the inventors at Neocific were involved in the
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`development of wireless technology related to the 802.16, which is known as the “WiMAX”
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`standard. See Dkt. 18 at Par. 26. The current owner of the patents, Plaintiff Neo Wireless LLC
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`(“Neo”), is asserting five patents against Dell’s LTE and 5G products.
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`Defendants Dell Inc. and Dell Technologies Inc. (collectively “Dell”) disagree with Neo’s
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`understanding of the claims of the asserted patents, and the parties have identified several specific
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`claim terms below for which there is a dispute for the Court to resolve. In particular, and for the
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`reasons explained below, Dell does not agree that Neo’s proposed “plain and ordinary meaning”
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`construction resolves the parties’ disputes and will aid the jury in understanding the scope of the
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`claims.
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`The parties have also reached agreement on six terms, and Dell asks that the Court approve
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`the stipulated meanings of these six terms as set out in Exhibit A.
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`I.
`
`ARGUMENT
`
`A.
`
`Disputed Terms from U.S. Patent No. 8,467,366
`
`1.
`
`“the ranging signal is formed from a ranging sequence selected from a set
`of ranging sequences [associated with the cell] for identifying the mobile
`station”
`
`“the ranging signal is formed from a ranging sequence selected from a set of ranging
`sequences [associated with the cell] for identifying the mobile station” – claims 1 and 17
`
`Dell
`
`The ranging signal is formed from a ranging sequence selected by the
`mobile station from a set of ranging sequences [associated with the cell]
`for identifying the mobile station
`
`Neo Wireless
`
`Plain and ordinary meaning, and no construction necessary
`
`The parties dispute the interpretation of the passive-voice “selected from” phrase in claims
`
`1 and 17 of the ’366 patent. A POSITA would understand that “selected from” in the phrase refers
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`1
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 5 of 25
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`to the selection of a ranging sequence by the mobile station. Neo would prefer the Court issue no
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`construction so that the claim is ambiguous as to the entity that performs the selection.
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`In the terminology of cellular transmission patents, mobile stations are the phones in
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`customer’s pockets; base stations communicate with mobile stations and are part of the network
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`infrastructure that is typically not seen by everyday users of mobile stations. Claim 1 is an
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`apparatus claim (directed to “a mobile station”) and claim 17 is a method claim (directed to “a
`
`method for signal transmission by a mobile station”). The parties have agreed that the preambles
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`for these claims, including references to the “mobile station,” are limiting. As a result, the claims
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`are directed to the mobile station (claim 1) or the actions taken by the mobile station (claim 17).
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`Although the claims also recite a “base station” in the preamble (which, again, the parties
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`agree is limiting), the body of the claims are specifically drawn to the mobile station. ’366 patent
`
`at 7:6-7 (“the mobile station comprising:”), 8:40-41 (“a method for signal transmission by a mobile
`
`station”). Thus, all of the actions and requirements in the body of claims 1 and 17 are necessarily
`
`the actions and requirements of the mobile station — including the requirement that the ranging
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`signal “is formed from a ranging sequence selected from a set of ranging sequences.” Id. at 7:16-
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`17 and 8:49-50. As a matter of both law and logic — and considering that the claim limitations
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`are set out in the body of a claim directed to a “mobile station” — the “selected from” action must
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`necessarily be performed by the mobile station.
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`After the preamble, the only other device that is referenced in the body of the claims is the
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`“serving base station.” Id. at 7:8-9 and 8:43-44. But even though the claims refer to the “serving
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`base station” as the target for transmissions described in the claims, the actions in the body of the
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`claims are specifically performed by the “mobile station.” Consistent with the claim language, the
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`specification also states that the mobile station selects the ranging sequence. ’366 patent at 3:45-
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`2
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 6 of 25
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`47 (“A mobile station chooses a ranging sequence for random access and uses the sequence to
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`identify itself in the initial communication with a base station.”). To be clear, this is not just one
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`embodiment among many. The above-quoted passage in column 3 is the only disclosure for
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`selecting (or choosing) the ranging sequence. Accordingly, because “the claims cannot be of
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`broader scope than the invention that is set forth in the specification,” the claims must also be
`
`understood such that the “selected by” requirement in the claims is performed by the mobile
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`station. See On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1340 (Fed. Cir. 2006).
`
`In the alternative, if “selected from” is interpreted to include selection by a device other
`
`than the mobile station, claims 1 and 17 would be indefinite under Section 112. See Ruckus
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`Wireless, Inc. v. Innovative Wireless Sols., LLC, 824 F.3d 999, 1004 (Fed. Cir. 2016) (“Because
`
`the specification makes no mention of wireless communications, construing the instant claims to
`
`encompass that subject matter would likely render the claims invalid for lack of written
`
`description.”). First, there is no disclosure in the patent of an embodiment in which a device other
`
`than the mobile station selects the ranging sequence, and there is certainly no disclosure in the
`
`patent of how such a device would operate. An open-ended construction in which any device
`
`could select the ranging sequence would result in claims 1 and 17 that do not have written
`
`description support in and are not enabled by the specification. Id.; see also AK Steel Corp. v.
`
`Sollac & Ugine, 344 F.3d 1234, 1241 (Fed. Cir. 2003) (“a patent specification must enable the full
`
`scope of a claimed invention”). Indeed, it is unclear how such an embodiment would work because
`
`the “ranging sequence” is used to establish a connection with a base station. See ’366 patent at 1:
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`24-27 (“ranging” is one of the two typical steps in “random access for establishing communication
`
`with a base station”). Before the “ranging” step is performed and a connection is established, it is
`
`unclear how the base station could “select” the ranging sequence for the mobile station to use.
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`3
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 7 of 25
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`Second, if the mobile station does not perform the selecting step, a POSITA would not
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`know with any certainty if a given ranging sequence used by the mobile station would meet the
`
`“selected by” limitation and claims 1 and 17 would be indefinite. See Halliburton Energy Servs.,
`
`Inc. v. M-I LLC, 514 F.3d 1244, 1255 (Fed. Cir. 2008) (“When a proposed construction requires
`
`that an artisan make a separate infringement determination for every set of circumstances in which
`
`the composition may be used, and when such determinations are likely to result in differing
`
`outcomes (sometimes infringing and sometimes not), that construction is likely to be indefinite.”).
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`Consider, for example, a mobile station with a pre-programmed specific “ranging sequence” used
`
`for all “ranging signals” — a POSITA could not know whether that “ranging sequence” had been
`
`“selected from a set of ranging sequences” by the programmer (or by anything else). Because the
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`full history and origin of a given “ranging sequence” may not be known under Neo’s construction,
`
`a POSITA could not determine with reasonable certainty whether a device or method would
`
`infringe the claims, and the claim would be indefinite as a result. To avoid Section 112
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`indefiniteness and remain true to the language of the claims and the specification, Dell respectfully
`
`submits that “selected from” should be understood to require that the mobile station select the
`
`ranging sequence.
`
`2.
`
`“exhibits a low peak-to-average power ratio in the time domain”
`
`“exhibits a low peak-to-average power ratio in the time domain” – claims 1 and 17
`Dell
`
`Indefinite
`
`Neo Wireless
`
`Plain and ordinary meaning, and no construction necessary. To the extent
`construction is deemed necessary, “exhibits a low peak-to-average power
`ratio in the time domain” means “exhibits a peak-to-average power ratio
`in the time domain of 9dBs or less.”
`
`“Low” is a term of degree. Ex. D, Declaration of James Proctor in Support of Defendants’
`
`Opening Claim Construction Brief (“Proctor Decl.”) at Par. 23. Whether a particular parameter is
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 8 of 25
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`low enough (or too high) to qualify as “low” cannot be determined unless there is some standard
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`in the patent itself for making that determination. “Although terms of degree are not inherently
`
`indefinite, the patent must provide some standard for measuring that degree such that the claim
`
`language provides enough certainty to one of skill in the art when read in the context of the
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`invention.” GE Lighting Sols., LLC v. Lights of Am., Inc., 663 F. App’x 938, 940 (Fed. Cir. 2016)
`
`(internal quotations and alterations omitted, quoting Biosig Instruments, Inc. v. Nautilus, Inc., 783
`
`F.3d 1374, 1378 (Fed. Cir. 2015)). In particular, the patent must provide an “objective boundary”
`
`for the term of degree. Id.; see also Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370–71
`
`(Fed. Cir. 2014). Here, the ’366 patent does not provide an objective boundary for determining if
`
`the peak-to-average power ratio is “low,” and the claim is indefinite as a result. Proctor Decl. at
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`Pars. 24-28. There is no guidance in the claims or the specification for the meaning of “low” or
`
`whether a peak-to-average power ratio in the time domain qualifies as “low.”
`
`Beginning with the claims, neither claim explains what “low” means. Claims 1 and 17
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`only recite “exhibit[ing] a low peak-to-average power ratio in the time domain” as one of four
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`requirements for the claimed “ranging signal.” ’366 patent at 7:13-26 and 8:49-59. The other
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`three requirements in the claim for the “ranging signal” are all unrelated to the peak-to-average
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`power ratio for the ranging signal. Proctor Decl. at Par. 24. Thus, the claims themselves do not
`
`include an objective boundary for determining whether the peak-to-average power ratio in the time
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`domain is “low.” Id.
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`The specification also does not provide any guidance. The only discussion of this feature
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`in the specification is in two sentences in column four:
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`In one embodiment of the implementation, the ranging sequence is designed
`such that its corresponding time-domain signal exhibits relatively low
`peak-to-average power ratio. This improves the power efficiency of the
`mobile station transmission power amplifier.
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`5
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`8
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 9 of 25
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`’366 patent at 4:34-38. Again, there is nothing here that would provide an objective boundary to
`
`evaluate whether a peak-to-average power ratio in the time domain is “low.” Proctor Decl. at
`
`Par. 25. Instead, this language actually emphasizes the inherent subjectivity in the use of “low”
`
`by referring to a “relatively low” ratio. This, of course, raises the question: relative to what? The
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`patent does not tell us.
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`Similarly, the statement in the specification that the “relatively low” peak-to-average
`
`power ratio “improves the power efficiency” does not provide an objective boundary for the
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`claimed “low peak-to-average power ratio.” First, the described benefit is only associated with
`
`“relatively low” ratios, and it is not clear whether the claimed standard of “low” would be the same
`
`as “relatively low.” Second, even assuming that the claimed “low” is coextensive with “relatively
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`low” in the specification, this stated benefit does not give any objective boundary to “low” because
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`the benefit, “improv[ing] power efficiency,” is itself a statement of relative degree. Proctor Decl.
`
`at Par. 26. Because there is no guidance about what improvement in power efficiency would be
`
`sufficient, the statement in the specification about power efficiency does not add any certainty as
`
`to the meaning of “low.”
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`There is no other discussion in the specification of peak-to-average power ratios. Although
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`the specification does describe examples of ranging sequences (see Table 1 at 4:24-31), there is
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`nothing in the specification that indicates whether or not these sequences would be considered to
`
`have a “low” peak-to-average power ratio. Proctor Decl. at Pars. 27-28. Without a more certain
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`connection between these examples and the idea of a “low” peak-to-average power ratio, these
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`examples do not provide an objective boundary. See Interval Licensing, 766 F.3d at 1373 (finding
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`that term of degree lacked an “objective boundary” where the “phrase has too uncertain a
`
`relationship to the patents’ embodiments.”). Because the ’366 patent does not provide any
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 10 of 25
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`objective boundary for the claimed term of degree, “low,” the claims of the ‘366 patent that include
`
`the phrase “low peak-to-average power ratio in the time domain” are indefinite.
`
`B.
`
`Disputed Terms from U.S. Patent No. 10,044,517
`
`1.
`
`Preambles
`
`“A method for a mobile device to receive data packets in an orthogonal frequency division
`multiple access (OFDMA) wireless communication system operating on multiple radio-
`frequency (RF) bands, the method comprising” – claim 1
`
`Dell
`
`Preamble is not limiting
`
`Neo Wireless
`
`Preamble is limiting
`
`“A mobile device in an orthogonal frequency division multiple access (OFDMA) wireless
`communication system operating on multiple radio-frequency (RF) bands, the mobile device
`comprising:” – claim 13
`
`Dell
`
`Preamble is not limiting
`
`Neo Wireless
`
`Preamble is limiting
`
`The parties agree that the preambles for the ’366, ’450, and ’941 patents are limiting.
`
`However, unlike those patents, the preambles for the ’517 patent do not “breathe[] life and meaning
`
`into the claim.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1118
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`(Fed. Cir. 2004). Instead, these preambles state an intended purpose, and statements of intended
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`purpose are not limiting. See Arctic Cat Inc. v. GEP Power Prod., Inc., 919 F.3d 1320, 1328 (Fed.
`
`Cir. 2019) (“In particular, the rule against giving invention-defining effect to intended-use
`
`preamble language reflects a longstanding substantive aspect of the patent statute—specifically,
`
`the well settled fundamental principle that the recitation of a new intended use for an old product
`
`does not make a claim to that old product patentable.” (internal quotation marks omitted)). Finally,
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`although claims 1 and 13 both include “a mobile device” in the preamble and “the mobile device”
`
`in the body of the claims, “antecedent basis alone is not determinative of whether a preamble is
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`10
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 11 of 25
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`limiting.” Shoes by Firebug LLC v. Stride Rite Children’s Grp., LLC, 962 F.3d 1362, 1368 (Fed.
`
`Cir. 2020). At a minimum, the use of the phrase “a mobile device” in the preamble as an antecedent
`
`basis for “the mobile device” in the body of the claim would not automatically cause the entire
`
`preamble to be limiting. See Cochlear Bone Anchored Sols. AB v. Oticon Med. AB, 958 F.3d 1348,
`
`1355 (Fed. Cir. 2020) (“Although the preamble term ‘a patient’ may provide antecedent basis for
`
`claim 1’s later recitation of ‘the patient,’ that is not the preamble language [the patent owner]
`
`argues is limiting.”). At most, the only portion of the preamble that would become limiting
`
`because of the use of “the mobile device” in the body of the claim is the phrase “mobile device”
`
`in the preamble.
`
`2.
`
`“receiving scheduling information from a serving base station, the
`scheduling information indicating an allocation of airlink resources in a
`first RF band and a second RF band”
`
`“receiving scheduling information from a serving base station, the scheduling information
`indicating an allocation of airlink resources in a first RF band and a second RF band” –
`claim 1
`
`Dell
`
`Receiving a singular message from a singular base station that indicates
`an allocation of airlink resources in a first RF band and a second RF band
`
`Neo Wireless
`
`Plain and ordinary meaning, and no construction necessary
`
`3.
`
`“receive scheduling information from a serving base station, the scheduling
`information indicating an allocation of airlink resources for receiving a
`first signal… over a first RF band and a second signal … over a second RF
`band”
`
`“receive scheduling information from a serving base station, the scheduling information
`indicating an allocation of airlink resources for receiving a first signal… over a first RF band
`and a second signal … over a second RF band” – claim 13
`
`Dell
`
`Receiving a singular message from a singular base station that indicates
`an allocation of airlink resources for receiving a first signal over a first RF
`band and for receiving a second signal over a second RF band
`
`Neo Wireless
`
`Plain and ordinary meaning, and no construction necessary
`
`8
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`11
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 12 of 25
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`Dell’s proposed constructions for these two similar phrases are necessary to explain that
`
`these claims recite multiple requirements for the received “scheduling information,” and these
`
`multiple requirements cannot be satisfied by pointing to multiple different pieces of scheduling
`
`information. The Federal Circuit has aptly explained this issue by analogy: “For a dog owner to
`
`have ‘a dog that rolls over and fetches sticks,’ it does not suffice that he have two dogs, each able
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`to perform just one of the tasks. In re Varma, 816 F.3d 1352, 1363 (Fed. Cir. 2016). To continue
`
`the Federal Circuit’s analogy, the dog in this claim is the singular “scheduling information” that
`
`must meet three requirements: (1) it must be “from a serving base station,” (2) it must “indicat[e]
`
`an allocation of airlink resources” for the “first RF band,” and (3) it must “indicat[e] an allocation
`
`of airlink resources” for the “second RF band.” It is not sufficient for multiple different pieces of
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`scheduling information collectively to satisfy these requirements: the claims require that the
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`scheduling information meet all three.
`
`Neo, however, has taken the position that multiple different pieces of scheduling
`
`information can satisfy these requirements. That is, Neo contends that one piece of scheduling
`
`information can indicate the allocation for resources in the first RF band, while a second piece of
`
`information can indicate the allocation of resources. This interpretation of the claim language is
`
`foreclosed by In re Varma, and we request that the Court reject Neo’s interpretation of the claim.
`
`Dell’s proposed construction is also supported by the specification. The specification
`
`describes a “Scheduler” that makes scheduling decisions for two channels being used for
`
`transmission: a “broadcast channel” and a “regular channel.” ’517 patent at 8:23-35. This
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`scheduler “allocates the air link resources to both channels.” Id. at 8:31-32 (emphasis added). The
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`description in the specification of a single “scheduler” to allocate resource for two channels is
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 13 of 25
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`consistent with the language in the claims requiring a single item of scheduling information that
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`allocates resource on the first and second RF bands.
`
`Dell’s proposed constructions clarify that the claims require a single item of “scheduling
`
`information” that meets all three requirements in the claims: (1) “from a serving base station,” (2)
`
`“indicating an allocation of airlink resources” for the “first RF band,” and (3) “indicating an
`
`allocation of airlink resources” for the “second RF band.”
`
`4.
`
`“allocation of airlink resources [] for receiving a first signal with a first
`frame structure having first frame boundaries and a second signal with a
`second frame structure having second frame boundaries”
`
`“allocation of airlink resources [] for receiving a first signal with a first frame structure having
`first frame boundaries and a second signal with a second frame structure having second frame
`boundaries” – claims 1 and 13
`
`Dell
`
`Plain and ordinary meaning, which means the first signal comprises a
`frame and the second signal comprises a frame
`
`Neo Wireless
`
`Plain and ordinary meaning, and no construction necessary
`
`The parties disagree about the significance of the “frame boundaries” phrase in this claim
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`term. Under the plain and ordinary meaning of “frame structure having [] frame boundaries”
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`occurring in two separate signals, the two recited signals must each include a frame. The claims
`
`require two complete frames: one in the first signal and one in the second signal. The claim
`
`language also concerns the “boundaries” of a frame. Everyone understands that the boundaries of
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`an area define the entire area. For example, the boundaries of a football field or a baseball diamond
`
`define the area of the football field or baseball diamond. Thus, if the “boundaries” of the frame
`
`are included in the frame structure, then it must naturally be the case that an entire frame is in that
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`frame structure. This understanding is entirely logical and matches the common usage of the words
`
`in the claim.
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`13
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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 14 of 25
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`Here, the claimed frame boundaries are defined in the time domain, and that the claims
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`recite “first frame boundaries” plural and “second frame boundaries” plural. ’517 patent at 18:40-
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`43 and 20:20-23 (boundaries are “aligned in time.”) There are only two boundaries possible for
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`frames in the time domain; a beginning of the frame at one point in time, and an end of the frame
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`at some later point in time. And, because the claims require the frame structures to each have a
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`plurality of time-domain boundaries, the frame structure necessarily includes both the beginning
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`and the ending of these frames, meaning that the first and second signal must each include a
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`complete frame. The specification also confirms that “boundary” is not used in any way that is
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`unusual or extraordinary. Rather, the specification also confirms that “frame boundary” is being
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`used in its ordinary sense in the ’517 patent, to describe the edges of a complete frame. See ’517
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`patent at 11:15-16 (“All the base stations are aligned in transmission time at the frame boundary.”).
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`Lastly, the prosecution history confirms that the “frame boundaries” terminology in the
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`claims was meant to indicate that the first and second signals must each include at least one
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`complete frame. Specifically, in its February 5, 2018 Office Action response, the applicant
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`distinguished the prior art’s “single-frame and single-frequency-band system” from “the
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`two-frame and two-frequency-band system claimed by applicant.” Ex. B (February 5, 2018 Office
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`Action Response) at 9-10 (emphasis added). The only logical basis for the applicant’s assertion
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`during prosecution that the pending claims recite a “two-frame […] system” is the reference in the
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`claims to the “first frame boundaries” and “second frame boundaries.” And, given that the patentee
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`used the “two-frame” nature of the claimed invention to distinguish cited art, the claims must be
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`understood to include a “two-frame” system. See Poly-Am., L.P. v. API Indus., Inc., 839 F.3d
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`1131, 1137 (Fed. Cir. 2016) (finding “a clear and unmistakable disavowal” where patentee relied
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`on a feature to distinguish cited prior art).
`
`11
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`14
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`

`

`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 15 of 25
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`5.
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`“traffic characteristics”
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`“traffic characteristics” – claims 1 and 13
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`Dell
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`Indefinite, or in the alternative “the type of traffic being transmitted (e.g.,
`voice, data, video)”
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`Neo Wireless
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`Plain and ordinary meaning, and no construction necessary
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`A POSITA would not understand the phrase “traffic characteristics” with reasonable
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`certainty. The specification of the ’517 patent does not use the phrase “traffic characteristic.” The
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`only reference to “traffic” is for “applications with a variety of traffic patterns” (’517 patent at
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`5:11-12), and the only use of “characteristics” is in reference to “channel characteristics” (id. at
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`7:54 and 9:30). See also 1:52-54 (“. . . channels that have different characteristics”), 4:13-14 (“. .
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`. channels have different characteristics”), 9:16-17 (“. . . channels in the Cellular System have
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`different characteristics.”). It is apparent that the term “traffic characteristics” was coined by the
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`prosecuting attorney and without reference to the content of the application as it was originally
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`filed.
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`To the extent the “traffic characteristics” can be understood, a POSITA would understand
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`that this term refers to the type of information (or “traffic”) being transmitted in the wireless
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`communication. This understanding comes first from the language of the claims, which states that
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`the “first subframe configuration being associated with different traffic characteristics than the
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`second subframe configuration.” The emphasis in the claim on “different traffic characteristics”
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`between two subframes indicates to the reader that the subframes do not have the same traffic
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`types. In addition, as shown in Figure 3, the subframes in the specification are specifically
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`associated with different types of traffic, e.g., voice, data, or video. See ’517 patent at 5:19-21.
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`Thus, if “traffic characteristics” has any meaning, it must refer to the type of traffic being
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`transmitted, as shown in Figure 3.
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`12
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`15
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`

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`Case 1:22-cv-00060-DAE Document 44 Filed 10/28/21 Page 16 of 25
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`Although Neo does not disagree that “traffic” refers to the information being transmitted,
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`Neo maintains that “characteristics” should not be limited to any specific meaning and may
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`comprise any feature of the information being transmitted. Dell’s construction, howeve