Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 1 of 19
`
`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’ REPLY CLAIM CONSTRUCTION BRIEF
`
`Highly Restricted - Confidential
`
`1
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`GM 1040
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`

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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 2 of 19
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`TABLE OF CONTENTS
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`Page
`I. Argument .................................................................................................................................. 1
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`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 ............................................................. 6
`
`1. Preambles ...................................................................................................................... 6
`
`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” ........................................................................................................... 7
`
`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” .......................... 7
`
`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” .................................................................. 9
`
`5. “traffic characteristics” ............................................................................................... 10
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`C. Disputed Terms from U.S. Patent No. 10,075,941 ........................................................... 11
`
`1. “the antenna transmission scheme comprising a transmission diversity scheme or a
`multiple-input multiple-output (MIMO) scheme” ...................................................... 12
`
`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” ....................................................................................................................... 13
`
`D. Disputed Terms from U.S. Patent No. 10,447,450 ........................................................... 14
`
`1. “the segment having a starting time-frequency coordinate” ....................................... 14
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`E. Disputed Terms from U.S. Patent No. 10,833,908 ........................................................... 15
`
`1. Preambles .................................................................................................................... 15
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`II. Conclusion .............................................................................................................................. 15
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`-i-
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 3 of 19
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`TABLE OF AUTHORITIES
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`Page(s)
`
`CASES
`
`Arctic Cat Inc. v. GEP Power Prod., Inc.,
`919 F.3d 1320 (Fed. Cir. 2019)..................................................................................................6
`
`Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP,
`616 F.3d 1249 (Fed. Cir. 2010)................................................................................................11
`
`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018)..................................................................................................4
`
`Funai Elec. Co. v. Daewoo Elecs. Corp.,
`616 F.3d 1357 (Fed. Cir. 2010)..................................................................................................2
`
`In re Varma
`816 F.3d 1352 (Fed. Cir. 2016)..............................................................................................7, 8
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004)............................................................................................6, 15
`
`MagSil Corp. v. Hitachi Glob. Storage Techs., Inc.,
`687 F.3d 1377 (Fed. Cir. 2012)..................................................................................................4
`
`Nevro Corp. v. Bos. Sci. Corp.,
`955 F.3d 35 (Fed. Cir. 2020)......................................................................................................3
`
`Omega Eng’g, Inc, v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003)................................................................................................14
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc)..............................................................................1, 3
`
`Rembrandt Data Techs., LP v. AOL,
`LLC, 641 F.3d 1331 (Fed. Cir. 2011) ........................................................................................3
`
`Ruckus Wireless, Inc. v. Innovative Wireless Sols., LLC,
`824 F.3d 999 (Fed. Cir. 2016)....................................................................................................3
`
`-i-
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`3
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 4 of 19
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`Dell’s proposed constructions each properly clarify how a POSITA would interpret the
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`claims, in view of the specification and prosecution history. In contrast, Neo wrongly focuses on
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`broad interpretations of isolated claim language—broad interpretations that would divorce the
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`claims from the inventions described in the patents. Neo repeatedly suggests that, absent an
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`express “disclaimer” or “disavowal,” Neo is entitled to the broadest possible interpretations of
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`each phrase, but claim construction is not limited to disclaimer. In all cases, the specification is
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`critical to claim construction and cannot be discounted. “Assigning such a limited role to the
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`specification, and in particular requiring that any definition of claim language in the specification
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`be express, is inconsistent with our rulings that the specification is the single best guide to the
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`meaning of a disputed term[.]” Phillips v. AWH Corp., 415 F.3d 1303, 1320–21 (Fed. Cir. 2005)
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`(en banc) (internal quotation marks omitted). Moreover, several of Dell’s proposed constructions
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`are supported by express statements that rise to the level of disclaimer. For these reasons, Neo’s
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`overreliance on “plain and ordinary meaning” constructions should be rejected in favor of Dell’s
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`clarifying constructions.
`
`I.
`
`ARGUMENT
`
`A.
`
`Disputed Terms from U.S. Patent No. 8,467,366
`
`“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
`
`Neo’s “plain and ordinary” meaning construction is insufficient for this term because the
`
`passive voice “selected from” limitation is ambiguous as to what performs the selecting. To that
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`end, Dell’s proposed construction appropriately confirms that “a ranging sequence selected from
`
`1
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`4
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 5 of 19
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`a set of ranging sequences” refers to activity performed by the recited mobile station. Neo makes
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`three arguments against Dell’s clarification: first, it is unnecessary; second, it is not necessitated
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`by the preamble; and third, it improperly limits the claim to a “cherry-picked” embodiment.
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`Response at 1. None of these arguments explain why a POSITA would interpret the “selected
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`from” limitation in a way contrary to the rest of the ’366 patent.
`
`First, as to the necessity of a construction, Neo’s criticism that “Dell does not alter, omit,
`
`or replace a single word from the claim” is irrelevant. Response at 2. It is immaterial whether
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`Dell altered, omitted, or replaced words in its construction. What matters is that Dell’s proposed
`
`construction would “aid[] the court and the jury in understanding the term as it is used in the
`
`claimed invention.” Funai Elec. Co. v. Daewoo Elecs. Corp., 616 F.3d 1357, 1366 (Fed. Cir.
`
`2010). Dell’s proposed additions will help the jury understand the scope of Neo’s claims, which
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`Neo disputes, and thus the construction is necessary.
`
`Second, Neo’s myopic focus on the preamble is deceptive because—as Neo itself
`
`recognizes—the claims as a whole require the mobile station to transmit the claimed ranging
`
`signal. See Response at 2. The disputed “selected from” phrase appears in a “wherein” clause that
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`describes a feature of the claimed ranging signal. The fact that the claimed ranging signal comes
`
`from the mobile station informs how a POSITA would interpret the “wherein” clauses in the claim
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`that describe the ranging signal. Specifically, because the ranging signal is a product of the mobile
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`station, a POSITA would naturally interpret these “wherein” clauses as also referring to the
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`operation of the mobile station.
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`Third, Dell is not limiting the claims to a specific embodiment. Response at 2-3. The only
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`disclosure in the specification regarding this operation requires the mobile station to select a
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`ranging signal from a ranging sequence. Neo would disregard the teaching in the specification
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`5
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 6 of 19
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`that the mobile station performs the selecting, based only on an assertion that this does not rise to
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`the level of a “disclaimer.” Response at 2-3. But regardless of whether there is a disclaimer, the
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`specification still helps inform how limitations in the claims should be interpreted. Neo is not
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`entitled to “the term’s full scope under its plain and ordinary meaning” because the “selected from”
`
`term cannot be read in isolation from the remainder of the intrinsic record. See Response at 3; see
`
`also Phillips, 415 F.3d at 1313 (“Importantly, the person of ordinary skill in the art is deemed to
`
`read the claim term not only in the context of the particular claim in which the disputed term
`
`appears, but in the context of the entire patent, including the specification.”).
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`Lastly, Neo’s Response highlights how its proposed “plain and ordinary” construction
`
`would create problems under Section 112. See Ruckus Wireless, Inc. v. Innovative Wireless Sols.,
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`LLC, 824 F.3d 999, 1004 (Fed. Cir. 2016) (applying “[t] he canon favoring constructions that
`
`preserve claim validity.”). As an initial matter, if an undisclosed element performs an action in a
`
`system claim, the claim is indefinite. See Rembrandt Data Techs., LP v. AOL, LLC, 641 F.3d
`
`1331, 1339 (Fed. Cir. 2011). Neo’s insistence that anything anywhere could “select[]” the ranging
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`sequence would create exactly that outcome. Neo’s unbounded construction would also leave the
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`claims indefinite because a POSITA would not be able to determine at any time if a given ranging
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`signal infringes. In this regard, Dell disagrees with Neo’s argument that Nautilus abrogated
`
`Halliburton. See Response at 5. For example, while factually distinguishing Halliburton in a post-
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`Nautilus decision, the Federal Circuit did not suggest that the analysis in Halliburton was no longer
`
`valid. Nevro Corp. v. Bos. Sci. Corp., 955 F.3d 35, 40 (Fed. Cir. 2020) (“In Halliburton, we held
`
`claims reciting the term ‘fragile gel’ indefinite not because infringement could only be determined
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`3
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`6
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 7 of 19
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`after use, but because infringement could not be determined at any time.”).1 The claims would
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`also potentially lack enablement under Neo’s proposed construction. There is no dispute that the
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`specification of the ’366 patent does not describe using the serving base station to select the ranging
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`sequences for the ranging signal. See Alberth Decl. at ¶23. More importantly, Neo and its expert
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`are silent about the enablement of other potential scenarios if the “selected from” limitation is left
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`unbounded. This is a problem for Neo because the patent must enable the full scope of the claims.
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`MagSil Corp. v. Hitachi Glob. Storage Techs., Inc., 687 F.3d 1377, 1381 (Fed. Cir. 2012) (“Thus,
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`a patentee chooses broad claim language at the peril of losing any claim that cannot be enabled
`
`across its full scope of coverage.”).
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`“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.”
`
`The phrase “exhibits a low peak-to-average power ratio in the time domain” fails to inform
`
`a POSITA about the scope of the claim with reasonable certainty, and thus is indefinite. Neo does
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`not dispute that “low” is a term of degree. Response at 6. As a result, the only relevant question
`
`is whether the ’366 patent provides “objective boundaries” as to what would constitute “low” in
`
`this context. Berkheimer v. HP Inc., 881 F.3d 1360, 1364 (Fed. Cir. 2018) (“Our case law is clear
`
`that the objective boundaries requirement applies to terms of degree.”). Absent any objective
`
`1 Neo also incorrectly suggests that the indefiniteness of Neo’s proposed construction is not
`relevant because “Dell does not allege that infringement in this case turns on such an unknowable
`scenario[.]” Response at 5. The statutory definiteness requirement applies regardless of Neo’s
`infringement allegations.
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`7
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 8 of 19
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`criteria within the specification or the claims for the term “low,” the boundaries of this term of
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`degree hinge on the subjective view of a POSITA.
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`Neo is first wrong to assert that the preamble context for the claims provides an objective
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`boundary for the term “low.” See Response at 6-7. The issue is not whether a POSITA would
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`“have to subjectively judge how ‘low’ a peak-to-average power ratio [] is in a vacuum,” the issue
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`is whether a POSITA would have to “subjectively judge” a peak-to-average power ratio at all. Id.
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`(emphasis added). Because Neo is still relying on a subjective determination, it does not help Neo
`
`to identify factors that “a POSITA would consider” when making this determination. See id. at 7.
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`While this context may guide a POSITA’s subjective evaluation of whether a given peak-to-
`
`average power ratio is “low,” this context does not give any objective boundary as to what
`
`constitutes “low.” At best, Neo has identified objective inputs to the determination of “low,” but
`
`not objective boundaries on what could be “low.”
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`Neo’s second argument relying on the indication in the specification that a “relatively low
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`peak-to-average power ratio . . . . improves the power efficiency of the mobile station transmission
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`power amplifier” is also wrong. Response at 7-8; see also ’366 patent at 4:36-38. Neo asserts that
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`this provides an objective boundary because “there is a practical amount of reduction in PAPR that
`
`a POSITA would consider an improvement[.]” Response at 7. This argument still collapses into
`
`a subjective inquiry into what a POSITA would “consider.” Neo does not—and cannot—assert
`
`that all POSITAs would “consider” the same threshold for improvement. Ex. A (Supplemental
`
`Declaration of James Proctor in Support of Defendants’ Reply Claim Construction Brief (“Proctor
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`Supp. Dec’l”) at ¶ 9. Further, Neo’s expert Mr. Alberth describes constraints on the peak-to-
`
`average power ratio “such that it does not hinder the efficiency of the power amplifier[.]” Dkt.
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`45-1 at ¶ 27 (emphasis added). But “not hinder[ing]” the efficiency is not the same as affirmatively
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`8
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 9 of 19
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`improving it. Proctor Supp. Dec’l at ¶ 10. Neo has not shown that there is any objective boundary
`
`on what a POSITA would consider an improvement to the efficiency of the power amplifier.
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`The lack of any objective boundary in the ’366 patent for “low” is also highlighted by
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`Neo’s proposed alternative construction, which is disconnected from anything in the ’366 patent.
`
`See Response at 9-10. There is no suggestion of a 9dB threshold for “low” in the claims—nor in
`
`the specification—nor in the prosecution history. Proctor Supp. Dec’l at ¶¶ 11-12. Neo instead
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`relies on extrinsic evidence for this threshold; essentially conceding that no objective threshold is
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`disclosed in the ’366 patent. Response at 9-10. Neo’s citations to the prior art also do not establish
`
`that a POSITA would understand “low” to refer to 9dB. Neo and Mr. Alberth reach this 9dB
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`number by arbitrarily relying on cherry-picked examples from the prior art, such as the peak-to-
`
`average power ratio at the 10^-4 probability level in the Baxley reference . See Dkt. 45-1 at p. 28
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`(Fig. 2). It would be equally valid to consider other probability levels (e.g., 10^-3 or 10^-6) for
`
`the system in Baxley, which would provide a different baseline peak-to-average power ratio.
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`Proctor Supp. Dec’l at ¶ 12. Similarly, Mr. Alberth’s description of the You reference—
`
`contrasting low peak-to-average-power ratio signals with those “having a [ratio] greater than 11”
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`(emphasis added)—confirms on its face that POSITAs may consider other thresholds besides 9dB
`
`for identifying “low” peak-to-average power ratios. See Dkt. 45-1 at ¶ 28.
`
`B.
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`Disputed Terms from U.S. Patent No. 10,044,517
`
`Preambles
`
`Dell maintains that the preambles for the ’517 patent are not limiting because they do not
`
`“breathe[] life and meaning into the claim[s].” Innova/Pure Water, Inc. v. Safari Water Filtration
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`Sys., Inc., 381 F.3d 1111, 1118 (Fed. Cir. 2004). Neo’s assertion that the claims “are to operate
`
`on a multi-cell OFDMA system with given characteristics” appears be a statement of intended use,
`
`and thus is insufficient to show that the preamble should be limiting. Response at 11; see Arctic
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`6
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`9
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 10 of 19
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`Cat Inc. v. GEP Power Prod., Inc., 919 F.3d 1320, 1328 (Fed. Cir. 2019). Further, Neo’s
`
`arguments about how the preambles in the ’517 patent require operation on multiple RF bands
`
`ignore that the body of the claims uses different language to provide the same requirement. See
`
`Response at 11-12; ’517 patent at 18:34-37 (“receiving concurrently the first signal via the first
`
`RF band […] and the second signal via the second RF band” (emphasis added)).
`
`“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
`
`“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
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`Plain and ordinary meaning, and no construction necessary
`
`Dell’s proposed constructions are appropriate under In re Varma to confirm that a single
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`instance of “scheduling information from a serving base station” must meet two separate
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`requirements. 816 F.3d 1352, 1363 (Fed. Cir. 2016). It is not sufficient to have one piece of
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`information from one base station allocating airlink resources in a first RF band, and then a
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`separate piece of information from another base station allocating airlink resources in a second RF
`
`band. Like the Federal Circuit’s dog that rolls over and fetches sticks in Varma¸ there must be a
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`one “scheduling information from a serving base station” that meets both requirements. Id.
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`7
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`10
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 11 of 19
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`Neo wrongly suggests that Varma is inapplicable because Varma was focused on the use
`
`of the article “a.” Response at 13. According to Neo, the absence of “a” from the phrase “receive
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`scheduling information” renders Varma inapplicable. Id. But Neo ignores other relevant context
`
`in the claims: the second half of the phrase at issue confirms that “scheduling information” must
`
`be “from a serving base station,” and other claim limitations refer to “the scheduling information.”
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`18:26 and 20:2 (emphasis added). In this context, the scheduling information should be understood
`
`as singular—just like the “statistical analysis request” at issue in Varma.
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`Neo is also wrong to suggest that “information” is inherently uncountable. Response at
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`13. The claims recite receiving information, and—particularly in the context of wireless
`
`communication systems—the receipt of information is a discrete, recognizable event. Consistent
`
`with this context, Dell proposes using the term “singular message” to clarify for the factfinder that
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`the “receiv[ed] scheduling information” would likewise be a discrete, recognizable event. The
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`exact phrase is not important. Whether described as a “piece of information” or a “message” or
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`“singular information,” a POSITA would understand that the claimed scheduling information
`
`would come at once and from a single base station.
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`More importantly, Neo’s Response confirms its position directly contradicts the Federal
`
`Circuit’s holding in Varma. Specifically, Neo argues “scheduling information from a serving base
`
`station” should be read to encompass information received from multiple base stations. Response
`
`at 14-15. In other words, Neo would eliminate the requirement in the claims that information
`
`“from a serving base station” both “indicat[es] an allocation of airlink resources” for the “first RF
`
`band,” and “indicat[es] an allocation of airlink resources” for the “second RF band.” Id.; see also
`
`’517 patent at 18:25-28 and 20:1-8. This is exactly what the Federal Circuit prohibited in Varma:
`
`“Rather, the question is whether ‘a’ can serve to negate what is required by the language following
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`8
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`11
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 12 of 19
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`‘a’[.]” 816 F.3d at 1363. Regardless of whether “scheduling information” is interpreted as
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`singular, Varma requires the information for both the first RF band and the second RF band be
`
`from “a serving base station” singular.
`
`“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
`
`Dell’s proposal confirming that each of the first and second signal comprise a frame is
`
`appropriate because the plain meaning of “frame boundaries” refers to complete frames.
`
`Everything in the intrinsic record also confirms this understanding of “frame boundaries.” The
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`’517 patent clearly differentiates between complete frames, and parts of a frame, which are called
`
`“subframes” in the patent. See e.g., ’517 patent at 18:44-46 (“the first frame structure has a first
`
`subframe configuration and the second frame structure has a second subframe configuration”
`
`(emphasis added)); see also id. at Fig. 3. And the patentee confirmed during prosecution that the
`
`claims require a “two-frame … system.” See Dkt. 44-3 (February 5, 2018 Response to Office
`
`Action) at 9-10.
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`Neo would wrongly stretch the term “frame boundaries” well beyond its ordinary meaning,
`
`to cover subframe boundaries for partial frames. Response at 16. And Neo does not even argue
`
`that the intrinsic record requires this unusual construction. Instead, Neo argues only that there has
`
`not been a “disavowal” of the added claim scope. See Response at 16 and 18. But the absence of
`
`a disavowal does not eliminate the distinction in the patent between frames and subframes.
`
`Moreover, Dell disagrees that the prosecution history here is insufficient to constitute a disavowal,
`
`as a “two-frame . . . system” clearly must have two frames. See Dkt. 44-3 (February 5, 2018
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`9
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`12
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 13 of 19
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`Response to Office Action) at 9-10. Neo’s argument that the patentee’s reference to a “two-
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`frame” system during prosecution could mean two partial frames should also be rejected.
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`Response at 17. If the patentee’s intent was to describe parts of a frame, the patentee could have
`
`referred to a “two-subframe” system instead.
`
`“traffic characteristics” – claims 1 and 13
`
`Dell
`
`Indefinite, or in the alternative “the type of traffic being transmitted (e.g.,
`voice, data, video)”
`
`Neo Wireless
`
`Plain and ordinary meaning, and no construction necessary
`
`Neo’s vague interpretation of “traffic characteristics” confirms that the term is indefinite.
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`Response at 19-20. Neo argues this term includes any of “a variety of characteristics of the traffic
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`associated with the two signals, such as different frame structures and configurations being
`
`associated with different types of channels[.]” Response at 19-20. This would put no limits on
`
`“characteristics,” and obviate the reference to “traffic.” Neo’s position highlights the problem
`
`created by claims having terms with no grounding in the specification. A POSITA cannot
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`determine the scope of “traffic characteristics” with reasonable certainty because the term “traffic
`
`characteristics” does not have an established meaning on its own, and because the term is not
`
`explained (or even used) in the specification.
`
`Once again, Neo wrongly seeks to ignore the intrinsic record because “nowhere in the
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`patent is there any disavowal of other embodiments.” Response at 19. It is first unclear what Neo
`
`means by “other embodiments” in this assertion; there are no described embodiments of “traffic
`
`characteristics” in the ’517 patent. Neo cannot ignore the relevant intrinsic record—other claim
`
`terms and descriptions in the specification—based solely on the suggestion that there was not a
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`13
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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 14 of 19
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`“disavowal.” The claims and the specification confirm that if “traffic characteristics” has any
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`meaning, it must be limited to the type of traffic being transmitted.
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`Neo’s interpretation of “traffic characteristics” is inconsistent with the language of the
`
`claims, which separately require “frame structures” and “subframe configurations.” ’517 patent
`
`at 18:44-46 and 20:8-10. Because the claims already require the “traffic characteristics” to be
`
`associated with different frame structures and subframe configurations, Neo’s broad interpretation
`
`of “traffic characteristics” would render this requirement meaningless. See id. That is, if “different
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`frame structures” are sufficient to constitute “different traffic characteristics,” then the requirement
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`that the frame structures and subframe configurations be associated with traffic characteristic adds
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`nothing further to the claims. See Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d
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`1249, 1257 (Fed. Cir. 2010) (“Claims must be interpreted with an eye toward giving effect to all
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`terms in the claim.” (internal quotation marks omitted))
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`Neo also ignores that the specification refers to “channel characteristics.” See ’517 patent
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`at 9:16-39. This language draws a distinction between characteristics of the channel itself, and
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`characteristics of the traffic on a channel—Neo’s interpretation would eliminate this distinction.
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`If the patentee intended to claim “channel characteristics,” then it would have used that term in the
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`claims, instead of “traffic characteristics.”
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`C.
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`Disputed Terms from U.S. Patent No. 10,075,941
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`11
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`14
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`

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`Case 1:22-cv-00060-DAE Document 48 Filed 12/02/21 Page 15 of 19
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`“the mobile station-specific transmission parameters indicate an antenna transmission scheme
`[…] comprising a transmission diversity scheme or a multiple-input multiple-output (MIMO)
`scheme” – claims 8 and 13
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`Dell
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`Neo Wireless
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`The mobile station-specific transmission parameters indicate an antenna
`transmission scheme, which allows for use in systems that rely on
`transmission diversity schemes other than MIMO and in systems that rely
`on MIMO
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`Plain and ordinary meaning, and no construction necessary. To the extent
`construction is deemed necessary: “the mobile-station specific
`transmission parameters are capable of indicating one of both (1) an
`antenna transmission scheme that comprises a MIMO scheme, and (2) a
`transmission diversity scheme other than MIMO.”
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`Neo does not dispute that the patentee’s statements during prosecution constituted
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`disclaimer. Nonetheless Neo misunderstands Dell’s position on this term. Response at 22. Dell
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`seeks a construction that avoids covering MIMO-only schemes. Dell’s position is grounded in the
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`words of the patentee who distinguished the Wilson prior art as “exclusively directed to a MIMO
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`system.” Dkt 44-4 (April 12, 2018 Response to Office Action) at 9. To that end, Dell disagrees
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`with Neo’s use of the phrase “capable of indicating one of” in its alternative construction because
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`a MIMO-only system (like the Wilson prior art) is still “capable of indicating” one of the two
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`schemes. Dell’s construction avoids this pitfall by confirming that the term transmission
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`parameters “allows for use” in both MIMO and non-MIMO system.2 But Dell’s “allows for use”
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`construction does not require actual use in both a MIMO and a non-MIMO system.
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`Neo’s analogy to “tennis golf” is informative about the parties’ true dispute. Response at
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`22. In Neo’s hypothetical, it suggests “the cup on each green (the transmission parameters) must
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`be wide enough for either a tennis ball or golf ball to drop in—allowing for play with either tennis
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`or golf ball[s].” Id. But Neo’s hypothetical “either … or” construction could be interpreted to
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`2 Dell does not object to Neo’s altered choice of term, and Dell has adjusted its proposed construction to include
`reference to the mobile station-specific transmission parameters.
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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 48 Filed 12/02/21 Page 16 of 19
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`only require that the cup be wide enough to facilitate either one of the two options, not both. Thus,
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`Neo’s construction would potentially cover ordinary golf greens because the cups on golf greens
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`are wide enough for one of the two alternatives (golf balls) to drop in. That’s why—in this
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`analogy—Dell is arguing for a clearer statement that infringing cups must allow for both the use
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`of a tennis ball, and the use of a golf. Dell is not arguing that “the ball itself (the antenna
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`transmission scheme) must be both a tennis ball and a golf ball.” Response at 22.
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`It is not clear whether Neo is intentionally advancing the “capable of indicating one of”
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`construction in order to recapture MIMO-only schemes. But to avoid any doubt, the Court should
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`confirm that the claims require support for both MIMO and non-MIMO schemes.
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`“the mobile station-spec