Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 1 of 32
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
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`Plaintiff,
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`OZMO LICENSING LLC,
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`
`
`v.
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`DELL TECHNOLOGIES INC., and
`DELL INC.,
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`
`
`Defendants.
`
`Civil Action No. 6:22-cv-00642-ADA
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`
`
`JURY TRIAL DEMANDED
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`PLAINTIFF’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`1
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`DELL
`EXHIBIT 1034 - PAGE 1
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 2 of 32
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`I.
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 5
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`II.
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`BACKGROUND ................................................................................................................ 5
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`III.
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`DISPUTED TERMS ........................................................................................................... 7
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`A.
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`“WLAN” / “WPAN”............................................................................................... 7
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`B.
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`C.
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`“802.11x” .............................................................................................................. 12
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`“Overlay protocol” ................................................................................................ 15
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`“At least partially disable the wireless connection” / “disable the second
`D.
`connection” ....................................................................................................................... 17
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`E.
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`F.
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`“The disabling” / “the at least part is disabled” .................................................... 18
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`“Logic” terms ........................................................................................................ 19
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`1.
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`“Logic to coordinate a mutually agreeable inactivity period” .................. 20
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`“Logic for data forwarding between an originating node that is a
`2.
`node in of one of the first and second networks and a destination node that
`is a node in of the other of the first and second networks, the logic for data
`forwarding including logic for processing a data packet from the originating
`node to identify an address of the destination node in the data packet and
`using that address to transmit data into the second network” ............................... 23
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`“Logic for uniquely identifying the destination node from data
`3.
`received from the originating node such that the network-enabled hub can
`use that data to transmit data into the second wireless network” ......................... 25
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`“Wherein the network-enabled hub and the device include logic, in
`4.
`one or both of the network-enabled hub and the device, for initiating device
`discovery by sending broadcast discovery requests on a pre-defined channel” ... 26
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`“Wherein the network-enabled hub and the device further include
`5.
`logic, in one or both of the network-enabled hub and the device, for indicating
`characteristics and/or state of the network-enabled hub and/or device” ............... 28
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`IV.
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`CONCLUSION ................................................................................................................. 31
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`2
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 3 of 32
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`TABLE OF AUTHORITIES
`
`
`
`
`
`Cases
`
`Advanced Display Sys., Inc. v. Kent State Univ.,
`212 F.3d 1272 (Fed. Cir. 2000)................................................................................................... 6
`
`Apple Inc. v. Motorola, Inc.,
`757 F.3d 1286, 1299 (Fed. Cir. 2014)....................................................................................... 22
`
`Bicon, Inc. v. Straumann Co.,
`441 F.3d 945 (Fed. Cir. 2006)................................................................................................... 12
`
`Biosig Instruments, Inc. v. Nautilus, Inc.,
`783 F.3d 1374 (Fed. Cir. 2015)................................................................................................. 11
`
`Dyfan, LLC v. Target Corp.,
`28 F.4th 1360 (Fed. Cir. 2022) ........................................................................................... 19, 20
`
`Egenera, Inc. v. Cisco Sys., Inc.,
`972 F.3d 1367 (Fed. Cir. 2020)................................................................................................. 20
`
`Fundamental Innovation Sys. Int’l LLC v. Samsung Elecs. Co.,
`No. 2:17-cv-145, 2018 WL 647734 (E.D. Tex. Jan. 31, 2018) ................................................ 14
`
`In re American Acad. Of Science Tech Center,
`367 F.3d 1359 (Fed. Cir. 2004)............................................................................................. 9, 14
`
`Massachusetts Inst. of Tech. v. Abacus Software,
`462 F.3d 1344 (Fed. Cir. 2006)................................................................................................. 29
`
`Med. Instrumentation & Diagnostics Corp. v. Elekta AB,
`344 F.3d 1205 (Fed. Cir. 2003)................................................................................................. 22
`
`Noah Sys., Inc. v. Intuit Inc.,
`675 F.3d 1302 ........................................................................................................................... 28
`
`Philips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................................... 8
`
`PM Holdings, LLC v. Heart of Texas Surgery Ctr PLLC,
`No. 6:21-cv-00644-ADA, 2022 WL 1230272 (W.D. Tex. Apr. 26, 2022) .................... 8, 11, 15
`
`Sinorgchem v. Int’l Trade Com’n
`511 F.3d 1132 (Fed Cir. 2007).................................................................................................. 16
`
`
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`3
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 4 of 32
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`
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`Sonix Tech. Co., Ltd. v. Publications Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017)................................................................................................. 13
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`Sonrai Memory Ltd. v. Kingston Tech. Co., Inc.,
`No. 6:21-cv-01284, 2022 WL 3640302 (W.D. Tex. Aug. 23, 2022) ................................. 13, 20
`
`Typhoon Touch Techs., Inc. v. Dell, Inc.,
`659 F.3d 1376 (Fed. Cir. 2011)................................................................................................. 23
`
`Uniloc USA, Inc. v. Apple, Inc.,
`No. 19-cv-01692, 2021 WL 432183 (N.D. Cal. Jan. 15, 2021) ................................................ 15
`
`Via Vadis, LLC v. Blizzard Ent’t., Inc.,
`815 Fed.App’x. 539 (Fed. Cir. 2020)........................................................................................ 30
`
`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015)................................................................................................. 19
`
`Zeroclick, LLC v. Apple Inc.,
`891 F.3d 1003 (Fed. Cir. 2018)................................................................................................. 19
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 5 of 32
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`I.
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`INTRODUCTION
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`Ozmo Licensing LLC, (“Ozmo”), alleges Dell Technologies Inc. and Dell Inc,
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`(collectively “Dell”), infringe six patents owned by Ozmo: U.S. Patent Nos. 8,599,814 (“the ’814
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`patent”); 9,264,991 (“the ’991 patent”); 10,873,906 (“the ’906 patent”); 11,012,934 (“the ’934
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`patent”); 11,122,504 (“the ’504 patent”); and 11,252,659 (“the ’659 patent”).
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`This Court has familiarity with all but one of the patents-in-suit, having construed a
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`number of the following disputed terms in the case captioned Ozmo Licensing LLC v. Acer Inc.
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`at al., 6:21-cv-1225-ADA (henceforth “the Acer case”). In all such cases, Ozmo’s proposed
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`constructions adopt this Court’s claim constructions in the Acer case, while Dell disputes them.
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`To do so, Dell makes numerous incorrect factual assertions and mis-cites case law. For the
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`reasons set forth below, the Court should adopt Ozmo’s proposed constructions.
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`II.
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`BACKGROUND
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`Ozmo’s patents teach improved systems and methods for integrating a wireless personal
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`area network (“WPAN”) infrastructure into a wireless local area network (“WLAN”)
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`infrastructure. Prior to the inventions of the patents-in-suit, problems arose when integrating
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`WPANs into WLANs operating in the same frequency spectrum, because the WLAN and WPAN
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`transmissions interfered with each other. Ozmo’s improved systems and methods minimized
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`interference between WLANs and WPANs that co-existed in the same wireless medium, as well
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`as other problems arising from previous integrations of WLANs and WPANs, such as power
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`dissipation, lack of synchronization, low transmission rates, and latency in communications.
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`In the prior art, nodes of a WPAN required unacceptably high levels of power dissipation
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`to support sufficiently high data rates. In addition, hubs that switched traffic between a WLAN
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`and a WPAN incurred unacceptable switching-induced latencies. The inventors solved these
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`problems, first by introducing a WPAN protocol that was an overlay protocol of a WLAN
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`protocol and that was only partially consistent with the WLAN protocol. The inventors also
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`introduced a hub that was compliant with both that WPAN protocol and the WLAN protocol, and
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`that maintained its connections with both the WLAN using the WLAN protocol and the WPAN
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`using the WPAN protocol.
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`Other aspects of those inventions, as relevant to particular claim constructions, will be
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`discussed in the corresponding sections below.
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`Ozmo expects that in construing the claims the Court will rely principally upon the
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`intrinsic record of the six patents, which would include their claims and specifications, as well as
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`their prosecution histories. Although each was separately prosecuted, they share a common
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`ancestral application and thus the same specification.1
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`Each patent-in-suit also incorporates by reference the entire contents of U.S. Patent
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`Application Ser. No. 11/376,753 (referred to in the patents-in-suit as “Vleugels I”), filed by the
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`same inventors. (Ruderman Decl., Ex. 1)2. By virtue of that incorporation by reference, Vleugels
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`I forms part of the intrinsic record of the patents-in-suit, and thus may be relied upon by this
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`Court to construe the claims of those patents. Advanced Display Sys., Inc. v. Kent State Univ.,
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`212 F.3d 1272, 1282 (Fed. Cir. 2000). Because of this Court’s extensive familiarity with claim
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`construction, this Brief will forgo an introductory “Legal Standards” section, but will cite cases,
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`where appropriate, in specific sections below.
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`1 All citations to that common specification in this Brief are to the ’814 patent (Ex. 5).
`2 That application was later allowed as U.S. Patent No. 9,036,613 (“the ’613 patent”).
`The written disclosure of Vleugels I is identical to the specification of the ’613 patent (Ex. 1).
`Henceforth, all citations to exhibits refer to those included with the Ruderman Declaration.
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`III. DISPUTED TERMS3
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`A.
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`“WLAN” / “WPAN”
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`Dell’s Proposed Construction
`“WLAN” – “a wireless network with a typical
`coverage range on the order of 300 feet”
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`“WPAN” – “a wireless network with a typical
`coverage range on the order of 30 feet”
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`Ozmo’s Proposed Construction
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`“WLAN” – plain and ordinary meaning
`
`“WPAN” – “a short-range wireless network
`usable to connect peripherals to devices in
`close proximity”4
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`
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`Ozmo proposes its construction of WPAN based on this Court’s previous construction of
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`“personal area network” from the Acer case. In that case, in which Ozmo asserted most of the
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`claims asserted in this case, this Court partially adopted Acer’s proposed construction (i.e., “a
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`short-range wireless network usable to connect peripherals to devices in close proximity”) derived
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`from the common patent specification, but removed the reference to “wireless” and “decline[d] to
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`adopt [Acer’s] proposed construction that would exclude [devices that are not power sensitive].”
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`See Ex. 2 (ECF 36) at 32-34. In this case, Ozmo adds “wireless” to its proposed construction
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`because “WPAN” is the term in dispute, but otherwise agrees with this Court’s previous
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`construction and the reasoning behind it. As the Court found previously, the common specification
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`of the patents-in-suit supports Ozmo’s proposed construction: “A WPAN is a short-range wireless
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`network, with typical coverage ranges on the order of 30 feet, usable to connect peripherals to
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`devices in close proximity, thereby eliminating cables usually present for such connections.” Ex.
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`5 (’814 patent) at col. 9, lns. 36-39. This construction of “WPAN” is therefore proper and should
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`be adopted.
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`3 In view of the closeness of the parties’ proposed means-plus-function constructions of
`“a routing module for receiving …" (see ECF 32 at 33), in order to simplify issues for the Court
`to decide, Ozmo agrees with Dell’s proposed construction.
`4 Updated proposal to include “wireless” – though there are some claims that only refer to
`a “PAN,” rather than a “WPAN,” those claims make clear that the connection is wireless.
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`Because the term is well-known even to lay persons, Ozmo proposes that WLAN should
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`be construed according to its plain and ordinary meaning. See Philips v. AWH Corp., 415 F.3d
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`1303, 1314 (Fed. Cir. 2005) (“In some cases, the ordinary meaning of claim language as
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`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted meaning
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`of commonly understood words.”). There can be no dispute that “WLAN” was and is a known
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`term that simply means “wireless local area network.” See, e.g., Ex. 3 (Expert Rebuttal Declaration
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`of Dr. Jacob Sharony (“Sharony Decl.”)) at ¶ 24 & Ex. B thereto (IEEE Std. 802.11, 1999 Edition)
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`at p. 3 (“Abstract: The medium access control (MAC) and physical characteristics for wireless
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`local area networks (LANs) are specified in this standard….”) (emphasis added); There is no
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`dispute that a WLAN is a different network than a WPAN. But that does not mean that the former
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`term requires an express construction, especially given that both parties have provided proposed
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`constructions for the latter that clearly differentiates the two types of networks.
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`Dell’s argument for its narrow constructions regarding these terms is twofold.
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`First, Dell argues that the patentee provided an “express definition” of WLAN and WPAN
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`in the specification. ECF 32 at 12. This is incorrect because in order “[t]o act as his/her own
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`lexicographer, the patentee must ‘clearly set forth a definition of the disputed claim term,’ and
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`‘clearly express an intent to define the term.’” PM Holdings, LLC v. Heart of Texas Surgery Ctr
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`PLLC, No. 6:21-cv-00644-ADA, 2022 WL 1230272 at *2 (W.D. Tex. Apr. 26, 2022) (citing
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`Thorner v. Sony Comp. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (emphasis added).
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`Here, each citation relied on by Dell to support its “express definition” argument is cropped and
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`taken out of context. Providing that context shows that the patentee did not expressly define these
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`terms.
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`Dell cites to Vleugels I at ¶¶ [0007]-[0008], conveniently inserting ellipses when the cited
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`text undercuts its argument. ECF 32 at 12. For full context, these paragraphs are set forth below
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`(emphasis added throughout to underscore the non-definitional nature of the text):
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`Wireless communication systems can be categorized based on coverage range,
`which in some cases is dictated by use. A wireless local area network or “WLAN”,
`has a typical coverage range on the order of 300 feet and is useful for providing
`communications between computing devices in some (possibly loosely) defined
`space such as a home, office, building, park, airport, etc. In some modes of
`operation, one or more of the nodes is coupled to a wired network to allow other
`nodes to communicate beyond the wireless network range via that wired network.
`In 802.11 terminology, such nodes are referred to as “access points” and the typical
`protocol is such that the other nodes (referred to as “stations”) associate with an
`access point and communication is generally between a station and an access point.
`Some wireless networks operate in an “ad hoc” mode, wherein node devices
`communicate with each other without an access point being present.
`
`
` personal area network or “PAN” is a short-range wireless network, with typical
`coverage ranges on the order of 30 feet, usable to connect peripherals to devices in
`close proximity, thereby eliminating cables usually present for such connections.
`For example, a PAN might be used to connect a headset to a mobile phone or
`music/audio player, a mouse or keyboard to a laptop, a PDA or laptop to a mobile
`phone (for syncing, phone number lookup or the like), etc. Yet another example of
`a wireless PAN application is wireless medical monitoring devices that wirelessly
`connect monitoring hardware to a pager or similar read-out device. Yet another
`example is a remote control that connects to a wireless-enabled electronic device.
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` A
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`Taken in context, these passages fall far short of “lexicography.” See, e.g., In re American Acad.
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`Of Science Tech Center, 367 F.3d 1359, 1365 (Fed. Cir. 2004) (“This court has recognized that a
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`patentee ‘may demonstrate an intent to deviate from the ordinary and accustomed meaning of a
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`claim term by including in the specification expressions of manifest exclusion or restriction,
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`representing a clear disavowal of claim scope.”) (citation omitted) (emphasis added). As seen in
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`the passages above, the patentee used exemplary language rather than using expressions of
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`manifest exclusion or restriction. Similarly, the very next paragraph in Vleugels I (paragraph
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`[0009]) provides even more context illustrating that Dell’s position that the terms were expressly
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`defined is incorrect (emphasis added):
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`A personal area network (PAN) is generally used for the interconnection of
`information technology devices within the range of an individual person, typically
`within a range of 10 meters. For example, a person traveling with a laptop will
`likely be the sole user of that laptop and will be the same person handling the
`personal digital assistant (PDA) and portable printer that interconnect to the laptop
`without having to plug anything in, using some form of wireless technology.
`Typically, PAN nodes interact wirelessly, but nothing herein would preclude having
`some wired nodes. By contrast, a wireless LAN tends to be a local area network
`(LAN) that is connected without wires and serves multiple users.
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`
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`Therefore, even according to Dell’s cherry-picked citations its proposals fail.
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`The remainder of the specification shows the same, that is, contrary to Dell’s argument,
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`the patentee did not intend to define “WLAN” and “WPAN” to include numerical limitations. The
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`Field of the Invention simply differentiates “short-range wireless area networks (‘WPANs’)” from
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`“longer-range wireless local area networks (‘WLANs’)” without any mention of numerical range
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`limitations. Ex. 5 (’814 patent) at col. 1, lns. 25-29. And while Figure 1 “depicts some parameters
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`associated with a few existing and emerging standards for wireless connectivity,” the specification
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`also mentions that “the 802.11x standard is expanding into longer range applications.” Id. at col.
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`1, lns. 33-34 and 66-67. It would be conspicuously odd that a patentee that noticed rapidly evolving
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`networking ranges would nevertheless exclude such technological evolution from the scope of its
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`patents. The remainder of the citations relied upon by Dell likewise include relative words and
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`terms of degree that belie Dell’s attempt to import numerical limitations into the claims.
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`In contrast, where the patentee did choose to be its own lexicographer, it did so clearly and
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`manifestly:
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`For ease of understanding this disclosure, where it is important to make the
`distinction between devices, a device that exists to provide wireless connectivity is
`referred to as a “network interface”, “network interface device”, “wireless network
`interface device” or the like, while the device for which the wireless connectivity
`is being provided is referred to as a “computing device” or an “electronic device”
`notwithstanding the fact that some such devices do more than just compute or might
`not be thought of as devices that do actual computing and further notwithstanding
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`DELL
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`the fact that some network interface devices themselves have electronics and do
`computing.
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`Ex. 1 (Vleugels I) at [0016]. A person of ordinary skill in the art reading this would easily
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`understand that the patent’s referral to any of the quoted language means the express definitions
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`provided in this passage. That the patentee did not follow this convention when introducing
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`“WLAN” and “WPAN” adds further support to the fact that the patentee did not intend to introduce
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`definitions for these terms.
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`Second, Dell also attempts to import numerical limitations from the specification into the
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`claims under the guise that this Court’s previous construction of “personal area network” renders
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`the claims indefinite. ECF 32 at 15-16. The law, however, does not hold that terms of degree in
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`patent claims are improper, and the cases Dell relies upon do not support its position. Rather,
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`“terms of degree are [not] inherently indefinite. Claim language employing terms of degree has
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`long been found definite where it provided enough certainty to one of skill in the art when read in
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`the context of the invention.” Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1378 (Fed.
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`Cir. 2015) (citations omitted); see also PM Holdings, 2022 WL 1230272 at *6 (finding “that, in
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`the context of the specification and Figures 1 and 2, the term ‘near’ ‘inform[s] those skilled in the
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`art about the scope of the invention with reasonable certainty.’” (citations omitted)).
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`As such, a person of ordinary skill would not have found WLAN and WPAN indefinite
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`merely because one typically has longer range than the other. Ex. 3 (Sharony Decl.) at ¶ 25. In
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`fact, Dell’s own expert, Mr. Proctor, acknowledges as much. In paragraph 61 of his declaration,
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`he states that: “… in defining WPAN, the specification provides that WPAN can be used to
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`‘connect peripherals to devices in close proximity.’ Although ‘close’ is another term of degree, it
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`is my opinion that a POSITA would have understood it to be commensurate in scope with ‘short.’”
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`ECF 32-4 (“Proctor Decl.”), ¶ 61. Dell’s indefiniteness argument should be seen for what it is: a
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`bare attempt to have this Court improperly read limitations from the specification into the claims
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`and narrow their scope.
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`Dell also takes issue with the phrase “usable to connect peripherals” in Ozmo’s proposed
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`construction of WPAN. ECF 32 at 15-16. But including this phrase in the construction of WPAN
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`(as this Court did for “personal area network” in the Acer case) is not improper because it does not
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`render any claim language meaningless. That is, nothing about its inclusion would read out any
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`limitations of any claim. Unasserted claim 16 of the ’814 patent simply sets out particular types of
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`peripherals as WPAN devices, meaning that other types of peripherals may be included in the
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`independent claim from which it depends. See Bicon, Inc. v. Straumann Co., 441 F.3d 945, 951-
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`52 (Fed. Cir. 2006).
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`Ozmo’s proposed construction for WPAN should be adopted because it is sufficiently
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`definite and avoids adding improper limitations into the claim. Ozmo’s proposal that WLAN be
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`construed by its plain and ordinary meaning should be adopted because the term itself has a clear
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`and well-known meaning. The proper construction of WPAN will suffice to differentiate the two
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`types of networks.
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`B.
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`“802.11x”
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`Dell’s Proposed Construction
`Indefinite; alternatively, all amendments to
`802.11 as of March 14, 2006
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`Ozmo’s Proposed Construction
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`Plain and ordinary meaning
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`
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`In arguing that “802.11x” is indefinite, Dell and its expert both assert that the term “had no
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`plain and ordinary meaning on March 14, 2006.” ECF 32 at 17. This assertion is belied by
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`contemporaneous evidence, however, which demonstrates that the term was being used by those
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`of ordinary skill from at least 2001, as shown in U.S. Patent No. 6,712,698. See Ex. 3 (Sharony
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`Decl.) at ¶ 29. Thus, the term was already in use nearly five years prior to the filing date of the
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`DELL
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 13 of 32
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`first utility application in the Ozmo patent family. In fact, a search of U.S. patents and published
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`applications filed prior to March 14, 2006 including the term “802.11x” yielded at least 138 hits.5
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`See id. at ¶ 31. Moreover, no fewer than 60 of the issued patents in the set contain the term in the
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`claims. See id. Thus, in contrast to the (contested) rejection of claims containing the term by the
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`examiner of U.S. Pat. App. No. 13/340,465 cited by Dell (see ECF 32 at 18-19), other USPTO
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`examiners indisputably allowed claims containing the term to issue.6 Thus, contrary to Dell’s
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`assertion, “802.11x” had a known meaning by March 14, 2006: it was simply shorthand to refer to
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`the family of 802.11 specifications. See Ex. 3 (Sharony Decl.) at ¶¶ 26-30.
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`Dell’s indefiniteness argument is further undermined by its own alternative construction,
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`which demonstrates that the term is actually amenable to construction. See Sonrai Memory Ltd. v.
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`Kingston Tech. Co., Inc., No. 6:21-cv-01284, 2022 WL 3640302 at *5-*6 (W.D. Tex. Aug. 23,
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`2022) (finding “Defendants’ argument that the term is indefinite is undercut by Defendants’
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`proposed construction, which indicates that a POSITA would understand the meaning of this claim
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`term with reasonable certainty.”).
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`Because Dell has not (and cannot) prove that “802.11x” is indefinite, the remaining issue
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`is what construction, if any, is required for “802.11x.” See Sonix Tech. Co., Ltd. v. Publications
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`Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017). The cases to which Dell cites in support of its
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`5 This number is likely an undercount, as it was the number of search results that could be
`verified as containing the term by the time this brief was filed. It also excludes foreign patents,
`foreign published applications, and other printed publications that contain the term. See, e.g., Ex.
`3 (Sharony Decl.) at ¶ 30, demonstrating at least one academic paper also contained the term
`prior to March 14, 2006.
`6 Contrary to Dell’s assertion regarding the prosecution of U.S. Pat. App. No. 13/340,465,
`the applicant did not acquiesce to the examiner’s rejection, but instead disputed the examiner’s
`reasoning, stating that “Applicant submits that the fact that a particular element may evolve over
`time does not render recitation of that element indefinite. It may change from time to time, but it
`is definite at any given time.” ECF 32-6 at 12.
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`
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`13
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`EXHIBIT 1034 - PAGE 13
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 14 of 32
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`alternative proposed construction are inapposite. In all of the cases Dell cites for the proposition
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`that “802.11x” should be construed as only those lettered standards existing at the time of filing
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`(i.e., excluding, for example, 802.11n), the courts took note of whether “the patentee acted as its
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`own lexicographer or tried to redefine the term.” See, e.g., Fundamental Innovation Sys. Int’l LLC
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`v. Samsung Elecs. Co., No. 2:17-cv-145, 2018 WL 647734 at *7, *16 (E.D. Tex. Jan. 31, 2018).
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`Given that “802.11x” is shown to have had a plain and ordinary meaning at the time of the
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`invention, the plain and ordinary meaning should control in the absence of a clear and manifest
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`definition deviating from that meaning. In re American Acad. Of Science Tech Center, 367 F.3d
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`at 1365. The only intrinsic evidence is the two instances in which the patentee included the phrase
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`in the specification: “802.11x (x=a, b, g, n, etc.).” See Ex. 5 (’814 patent) at col. 1, ln. 41; col. 11,
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`lns. 42-43. But this is merely consistent with the use of the term at the time, i.e., referring to the
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`family of 802.11 specifications. See Ex. 3 (Sharony Decl.) at ¶¶ 26-30. The patentee clearly did
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`not redefine the term then in use.
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`Where, as here, the patentee has explicitly referred to “the development of the new 802.11n
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`specification,” included “n” in “802.11x (x=a, b, g, n, etc.)[,]” and refers to the “expanding” of the
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`802.11x standard, the 802.11 standards that may be encompassed by “802.11x” should not
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`necessarily be limited to those standards or specifications existing at the time of filing. Here the
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`802.11x technology that is material to the claim is not something that has meaningfully changed
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`over time—the claims rely on an 802.11 specification as a reference from which the overlay
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`protocol that is partially compliant is designed. Thus, claim elements like that which appears in
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`claim 1 of the ’934 patent: i.e., “wherein the WLAN protocol is an 802.11x protocol that uses a
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`frame defined by the 802.11x protocol, and the WPAN protocol uses a WPAN-adapted frame in
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`which at least one field of the frame defined by the 802.11x protocol is adapted to support the
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`14
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`DELL
`EXHIBIT 1034 - PAGE 14
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23 Page 15 of 32
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`WPAN power-saving protocol” (’934 patent, cl. 1) is sufficiently definite with respect to any
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`published, final version of an 802.11 standard. See Uniloc USA, Inc. v. Apple, Inc., No. 19-cv-
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`01692, 2021 WL 432183 at *8 (N.D. Cal. Jan. 15, 2021) (deciding that “[r]ather than focus on
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`Bluetooth version numbers, the Court finds that the better approach is to look to the functionality
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`described or defined in the Bluetooth Core Specification versions in question—namely, whether
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`aspects of the Bluetooth technology that are material to the claimed invention have changed in any
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`meaningful way over time. If there has been a meaningful change, then the construction of the
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`disputed claim terms should reflect only the functionality material to the patent, as it existed at the
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`time of the claimed invention, is encompassed by the claims.”)
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`Accordingly, “802.11x” should be construed according to its commonly understood
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`meaning, and as supported by the specification, as referring generally to any of the IEEE 802.11
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`classes of standards, without being so limited to only those standards in existence at the time of
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`the invention. PM Holdings, LLC, 2022 WL 123072 at *5 (finding the term “IBC Class B
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`standards” was not indefinite simply because the standard is subject to later revision or
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`amendment).
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`C.
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`“Overlay protocol”
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`Dell’s Proposed Construction
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`A second protocol that has elements that are
`reuses of elements of a first protocol to
`provide one or more advantages
`
`
`
`Ozmo’s Proposed Construction
`A protocol governing a second network,
`which protocol has aspects in common with a
`first network protocol to reduce interference
`such that the second and first networks can
`co-exist
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`This term was construed by this Court in the Acer case. See Ex. 2 (ECF 36) at 23-26. There,
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`this Court agreed with Ozmo’s proposed construction and adopted it. See id. at 26. Ozmo proposes
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`that same construction in this case and agrees with the Court’s supporting reasoning, including the
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`extensive citations to the intrinsic evidence included therein. See id.
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`15
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`DELL
`EXHIBIT 1034 - PAGE 15
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`Case 6:22-cv-00642-ADA Document 38 Filed 04/21/23