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`EXHIBIT M
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`GOOGLE LLC,
`___________________________________
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`v.
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`WAZE MOBILE LTD.,
`___________________________________
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
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`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`
`THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
`§
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`§
` CASE NO. 2:19-CV-361-JRG
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`§
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`§
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`§
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`§
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`§
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` CASE NO. 2:19-CV-359-JRG
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` CASE NO. 2:19-CV-362-JRG
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`§
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`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
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`Before the Court is the Opening Claim Construction Brief (Dkt. No. 116) filed by
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`Plaintiff AGIS Software Development LLC (“Plaintiff” or “AGIS”). Also before the Court is the
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`Responsive Claim Construction Brief (Dkt. No. 120) filed by Defendants Google LLC, Waze
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`Mobile Ltd., Samsung Electronics Co., Ltd., and Samsung Electronics America, Inc.
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`(“Defendants”) as well as Plaintiff’s reply (Dkt. No. 123). The Court held a hearing on
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`October 30, 2020.
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`Table of Contents
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`I. BACKGROUND ....................................................................................................................... 4
`II. LEGAL PRINCIPLES ........................................................................................................... 5
`III. AGREED TERMS............................................................................................................... 11
`IV. DISPUTED TERMS ............................................................................................................ 11
`A. “selected response” ............................................................................................................. 11
`B. “the response list” ............................................................................................................... 17
`C. “a response list” ................................................................................................................... 23
`D. “recipient PDA/cell phone” and “sender PDA/cell phone” ................................................ 26
`E. “A method of receiving, acknowledging and responding to a forced message alert from
`a sender PDA/cell phone to a recipient PDA/cell phone, wherein the receipt,
`acknowledgment, and response to said forced message alert is forced by a forced
`message alert software application program, said method comprising the steps of:” ........ 30
`F. “a data transmission means that facilitates the transmission of electronic files between
`said PDA/cell phones in different locations” ...................................................................... 35
`G. “means for attaching a forced message alert software packet to a voice or text message
`creating a forced message alert that is transmitted by said sender PDA/cell phone, said
`forced message alert software packet containing a list of possible required responses
`and requiring the forced message alert software on said recipient PDA/cell phone to
`transmit an automatic acknowledgement to the sender PDA/cell phone as soon as said
`forced message alert is received by the recipient PDA/cell phone” ................................... 41
`H. “means for requiring a required manual response from the response list by the recipient
`in order to clear recipient’s response list from recipient’s cell phone display” .................. 46
`I. “means for receiving and displaying a listing of which recipient PDA/cell phones have
`automatically acknowledged the forced message alert and which recipient PDA/cell
`phones have not automatically acknowledged the forced message alert” .......................... 51
`J. “means for periodically resending said forced message alert to said recipient PDA/cell
`phones that have not automatically acknowledged the forced message alert” ................... 55
`K. “means for receiving and displaying a listing of which recipient PDA/cell phones have
`transmitted a manual response to said forced message alert and details the response
`from each recipient PDA/cell phone that responded” ........................................................ 59
`L. “means for transmitting the acknowledgment of receipt to said sender PDA/cellphone
`immediately upon receiving a force message alert from the sender PDA/cellphone” ....... 62
`M. “means for controlling of the recipient PDA/cellphone upon transmitting said
`automatic acknowledgment and causing, in cases where the forced message alert is a
`text message, the text message and a response list to be shown on the display of the
`recipient PDA/cellphone or causes, in cases where the forced message alert is a voice
`message, the voice message being periodically repeated by the speakers of the
`recipient PDA/cellphone while said response list is shown on the display” ...................... 68
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`N. “means for allowing a manual response to be manually selected from the response list
`or manually recorded and transmitting said manual response to the sender PDA/cell
`phone” ................................................................................................................................. 73
`O. “means for clearing the text message and a response list from the display of the
`recipient PDA/cell phone or stopping the repeating voice message and clearing the
`response list from the display of the recipient PDA/cell phone once the manual
`response is transmitted” ...................................................................................................... 77
`P. “spatial coordinates” ............................................................................................................ 81
`Q. “Short Message Service (SMS) messages” ......................................................................... 86
`R. “facilitating initiation of Internet Protocol (IP) based communication between the first
`device and the respective second devices” ......................................................................... 92
`S. “receiving a message from a second device” ...................................................................... 95
`V. CONCLUSION...................................................................................................................... 99
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`I. BACKGROUND
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`Plaintiff alleges infringement of United States Patents No. 8,213,970 (“the ’970 Patent”),
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`9,408,055 (“the ’055 Patent”), 9,445,251 (“the ’251 Patent”), 9,467,838 (“the ’838 Patent”),
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`9,749,829 (“the ’829 Patent”) & 9,820,123 (“the ’123 Patent”) (collectively, “the patents-in-
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`suit”). (Dkt. No. 116, Exs. B–G.) Plaintiff submits that “[t]he ‘[f]ield of the [i]nvention’ is
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`described generally as related to the field of map-based communication among cellphone/PDA
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`devices, now more commonly referred to as ‘smartphones.’” (Dkt. No. 116, at 1.)
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`The ’970 Patent is titled “Method of Utilizing Forced Alerts for Interactive Remote
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`Communications” and issued on July 3, 2012. The Abstract of the ’970 Patent states:
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`The system and method having a specialized software application on a personal
`computer or a PDA/cell phone that that [sic] enables a participant to force an
`automatic acknowledgement and a manual response to a text or voice message
`from other participants within the same network. Each participant’s PDA/cell
`phone includes a forced message alert software application program for both
`creating and processing these forced message alerts. The system and method
`enabled by the forced message alert software application program provides the
`ability to (a) allow an operator to create and transmit a forced message alert from
`a sender PDA/cell phone to one or more recipient PCs and PDA/cell phones
`within
`the
`communication network;
`(b)
`automatically
`transmit
`an
`acknowledgement of receipt to the sender PDA cell phone upon the receipt of the
`forced message alert; (c) periodically resend the message to the recipient PCs and
`PDA/cell phones that have not sent an acknowledgement; (d) provide an
`indication of which recipient PCs and PDA/cell phones have acknowledged the
`forced message alert; (e) provide a manual response list on the display of the
`recipient PC and PDA/cell phone’s display that can only be cleared by manually
`transmitting a response; and (f) provide an indication on the sender PDA/cell
`phone of the status and content the [sic] manual responses.
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`The ’838 Patent is titled “Method to Provide Ad Hoc and Password Protected Digital and
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`
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`Voice Networks” and issued on October 11, 2016. The Abstract of the ’838 Patent states:
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`A method and system includes the ability for individuals to set up an ad hoc
`digital and voice network easily and rapidly to allow users to coordinate their
`activities by eliminating the need for pre-entry of data into a web or identifying
`others by name, phone numbers or email. This method is especially useful for
`police, fire fighters, military, first responders or other emergency situations for
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`coordinating different organizations at the scene of a disaster to elevate
`conventional communication problems either up and down the chain of command
`or cross communication between different emergency units. The method and
`system provides that the users are only required to enter a specific Server IP
`address and an ad hoc event name, a password and perhaps the name of the
`particular unit.
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`The ’055 Patent, the ’251 Patent, and the ’829 Patent resulted from continuations of the
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`’838 Patent. The patents-in-suit all claim priority to United States Patent Application No.
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`10/711,490 (“the ’490 Application”), filed on September 21, 2004, which issued as United States
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`Patent No. 7,031,728. (Dkt. No. 116, Ex. A.)1
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`The Court previously construed disputed terms in all but one of the patents-in-suit in
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`AGIS Software Development, LLC v. Huawei Device USA Inc., et al., No. 2:17-CV-513, Dkt.
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`No. 205 (E.D. Tex. Oct. 10, 2018) (Gilstrap, J.) (“Huawei”).2
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`Shortly before the start of the October 30, 2020 hearing, the Court provided the parties
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`with preliminary constructions with the aim of focusing the parties’ arguments and facilitating
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`discussion. Those preliminary constructions are noted below within the discussion for each
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`term.
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`II. LEGAL PRINCIPLES
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`It is understood that “[a] claim in a patent provides the metes and bounds of the right
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`which the patent confers on the patentee to exclude others from making, using or selling the
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`1 Plaintiff submits: “In its Preliminary Infringement Contentions, AGIS indicated that each of the
`asserted claims is entitled to the September 21, 2004 priority date. The Defendants have
`indicated, both in this litigation and in inter partes reviews that they intend to challenge the 2004
`priority date. AGIS maintains to Defendants that, in the alternative, each claim is at least entitled
`to the subsequent interim priority dates, e.g., the next application in the priority chain, U.S.
`Application No. 11/308,648, which is April 17, 2006.” (Dkt. No. 116, at 4 n.3.)
`2 Plaintiff submits: “Although the ’123 Patent was not asserted in the Huawei case, Defendants
`do not propose any terms found only in the ’123 Patent require construction. The same claim
`terms that Defendants seek construction for that appear in the ’123 Patent are also found in the
`other Asserted Patents.” (Dkt. No. 116, at 2 n.1.)
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`protected invention.” Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed.
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`Cir. 1999). Claim construction is clearly an issue of law for the court to decide. Markman v.
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`Westview Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
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`(1996).
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`“In some cases, however, the district court will need to look beyond the patent’s intrinsic
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`evidence and to consult extrinsic evidence in order to understand, for example, the background
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`science or the meaning of a term in the relevant art during the relevant time period.” Teva
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`Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015) (citation omitted). “In cases where
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`those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about
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`that extrinsic evidence. These are the ‘evidentiary underpinnings’ of claim construction that we
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`discussed in Markman, and this subsidiary factfinding must be reviewed for clear error on
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`appeal.” Id. (citing 517 U.S. 370).
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`To ascertain the meaning of claims, courts look to three primary sources: the claims, the
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`specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must
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`contain a written description of the invention that enables one of ordinary skill in the art to make
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`and use the invention. Id. A patent’s claims must be read in view of the specification, of which
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`they are a part. Id. For claim construction purposes, the description may act as a sort of
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`dictionary, which explains the invention and may define terms used in the claims. Id. “One
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`purpose for examining the specification is to determine if the patentee has limited the scope of
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`the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
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`Nonetheless, it is the function of the claims, not the specification, to set forth the limits of
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`the patentee’s invention. Otherwise, there would be no need for claims. SRI Int’l v. Matsushita
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`Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
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`lexicographer, but any special definition given to a word must be clearly set forth in the
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`specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992).
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`Although the specification may indicate that certain embodiments are preferred, particular
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`embodiments appearing in the specification will not be read into the claims when the claim
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`language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
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`34 F.3d 1048, 1054 (Fed. Cir. 1994).
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`This Court’s claim construction analysis is substantially guided by the Federal Circuit’s
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`decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips,
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`the court set forth several guideposts that courts should follow when construing claims. In
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`particular, the court reiterated that “the claims of a patent define the invention to which the
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`patentee is entitled the right to exclude.” Id. at 1312 (quoting Innova/Pure Water, Inc. v. Safari
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`Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To that end, the words used
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`in a claim are generally given their ordinary and customary meaning. Id. The ordinary and
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`customary meaning of a claim term “is the meaning that the term would have to a person of
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`ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date
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`of the patent application.” Id. at 1313. This principle of patent law flows naturally from the
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`recognition that inventors are usually persons who are skilled in the field of the invention and
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`that patents are addressed to, and intended to be read by, others skilled in the particular art. Id.
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`Despite the importance of claim terms, Phillips made clear that “the person of ordinary
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`skill in the art is deemed to read the claim term not only in the context of the particular claim in
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`which the disputed term appears, but in the context of the entire patent, including the
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`specification.” Id. Although the claims themselves may provide guidance as to the meaning of
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`particular terms, those terms are part of “a fully integrated written instrument.” Id. at 1315
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`(quoting Markman, 52 F.3d at 978). Thus, the Phillips court emphasized the specification as
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`being the primary basis for construing the claims. Id. at 1314–17. As the Supreme Court stated
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`long ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive
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`portions of the specification to aid in solving the doubt or in ascertaining the true intent and
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`meaning of the language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878). In
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`addressing the role of the specification, the Phillips court quoted with approval its earlier
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`observations from Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
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`1998):
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`Ultimately, the interpretation to be given a term can only be determined and
`confirmed with a full understanding of what the inventors actually invented and
`intended to envelop with the claim. The construction that stays true to the claim
`language and most naturally aligns with the patent’s description of the invention
`will be, in the end, the correct construction.
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`Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important role the
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`specification plays in the claim construction process.
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`
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`The prosecution history also continues to play an important role in claim interpretation.
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`Like the specification, the prosecution history helps to demonstrate how the inventor and the
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`United States Patent and Trademark Office (“PTO”) understood the patent. Id. at 1317. Because
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`the file history, however, “represents an ongoing negotiation between the PTO and the
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`applicant,” it may lack the clarity of the specification and thus be less useful in claim
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`construction proceedings. Id. Nevertheless, the prosecution history is intrinsic evidence that is
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`relevant to the determination of how the inventor understood the invention and whether the
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`inventor limited the invention during prosecution by narrowing the scope of the claims. Id.; see
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`Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (noting that
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`“a patentee’s statements during prosecution, whether relied on by the examiner or not, are
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`relevant to claim interpretation”).
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`Phillips rejected any claim construction approach that sacrificed the intrinsic record in
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`favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court
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`condemned the suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
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`(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
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`dictionaries or otherwise) before resorting to the specification for certain limited purposes.
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`Phillips, 415 F.3d at 1319–24. According to Phillips, reliance on dictionary definitions at the
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`expense of the specification had the effect of “focus[ing] the inquiry on the abstract meaning of
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`words rather than on the meaning of claim terms within the context of the patent.” Id. at 1321.
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`Phillips emphasized that the patent system is based on the proposition that the claims cover only
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`the invented subject matter. Id.
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`Phillips does not preclude all uses of dictionaries in claim construction proceedings.
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`Instead, the court assigned dictionaries a role subordinate to the intrinsic record. In doing so, the
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`court emphasized that claim construction issues are not resolved by any magic formula. The
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`court did not impose any particular sequence of steps for a court to follow when it considers
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`disputed claim language. Id. at 1323–25. Rather, Phillips held that a court must attach the
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`appropriate weight to the intrinsic sources offered in support of a proposed claim construction,
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`bearing in mind the general rule that the claims measure the scope of the patent grant.
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`The Supreme Court of the United States has “read [35 U.S.C.] § 112, ¶ 2 to require that a
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`patent’s claims, viewed in light of the specification and prosecution history, inform those skilled
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`in the art about the scope of the invention with reasonable certainty.” Nautilus, Inc. v. Biosig
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`Instruments, Inc., 572 U.S. 898, 910, 134 S. Ct. 2120, 2129 (2014). “A determination of claim
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`indefiniteness is a legal conclusion that is drawn from the court’s performance of its duty as the
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`construer of patent claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347
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`(Fed. Cir. 2005) (citations and internal quotation marks omitted), abrogated on other grounds by
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`Nautilus, 134 S. Ct. 2120. “Indefiniteness must be proven by clear and convincing evidence.”
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`Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).
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`“[P]rior orders in related cases do not bar the Court from conducting additional
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`construction in order to refine earlier claim constructions.” TQP Dev., LLC v. Intuit Inc., No.
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`2:12-CV-180-WCB, 2014 WL 2810016, at *6 (E.D. Tex. June 20, 2014) (Bryson, J., sitting by
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`designation).
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`In general, however, prior claim construction proceedings involving the same patents-in-
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`suit are “entitled to reasoned deference under the broad principals of stare decisis and the goals
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`articulated by the Supreme Court in Markman, even though stare decisis may not be applicable
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`per se.” Maurice Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779,
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`at *4 (E.D. Tex. June 21, 2006) (Davis, J.); see TQP, 2014 WL 2810016, at *6 (“[P]revious
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`claim constructions in cases involving the same patent are entitled to substantial weight, and the
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`Court has determined that it will not depart from those constructions absent a strong reason for
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`doing so.”); see also Teva, 135 S. Ct. at 839–40 (“prior cases will sometimes be binding because
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`of issue preclusion and sometimes will serve as persuasive authority”) (citation omitted); Finisar
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`Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1329 (Fed. Cir. 2008) (noting “the importance of
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`uniformity in the treatment of a given patent”) (quoting Markman v. Westview Instruments, Inc.,
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`517 U.S. 370, 390 (1996)).
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`III. AGREED TERMS
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`
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`In their July 10, 2020 Joint P.R. 4-3 Claim Construction and Prehearing Statement (Dkt.
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`No. 109) and in their September 20, 2020 Joint Claim Construction Chart Pursuant to P.R. 4-5(d)
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`(Dkt. No. 128), the parties submitted the following agreements:
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`
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`Term
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`
`
`
`
`Agreed Construction
`“recipient-selectable response message”
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`
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`“a CPU, a touch screen display, and memory”
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`“application software that allows an operator to
`create and transmit forced message alerts”
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`than
`“more
`together”
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`two participants
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`associated
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`“manual response”
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`(’970 Pat., Cls. 1, 2)
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`“a CPU and a touch screen display a CPU and
`memory”
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`(’970 Pat., Cl. 1)
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`“a forced message alert software application
`program”
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`(’970 Pat., Cls. 1, 2, 10–12)
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`“group”
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`(ʼ251 Pat., Cls. 1, 24, 31;
`ʼ838 Pat., Cls. 1, 5, 19, 54;
`ʼ829 Pat., Cls. 1, 34, 35;
`ʼ123 Pat., Cls. 1, 14–17, 23, 36, 37, 45–47)
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`
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`IV. DISPUTED TERMS
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`A. “selected response”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`Plain and ordinary meaning
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`(Dkt. No. 109, Ex. B, at 1; id., Ex. C, at 1; Dkt. No. 116, at 6; Dkt. No. 120, at 2; Dkt. No. 128,
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`“recipient selected response message”
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`App’x A, at 37.) The parties submit that this term appears in Claim 10 of the ’970 Patent. (Dkt.
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`No. 109, Ex. B, at 1; id., Ex. C, at 1; Dkt. No. 128, App’x A, at 37.)
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`Shortly before the start of the October 30, 2020 hearing, the Court provided the parties
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`with the following preliminary construction: “recipient-selectable response message.”
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`
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`(1) The Parties’ Positions
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`Plaintiff argues that “Defendants’ proposed construction would conflate a ‘selected
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`response’ with the Court’s prior construction of a ‘manual response,’” and “Defendants’
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`construction unnecessarily complicates and adds ambiguity to the claims by adding numerous
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`unclaimed and undefined phrases, increases confusion instead of providing clarity, and unduly
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`limits the scope of ‘selected response.’” (Dkt. No. 116, at 7.)
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`Defendants respond that as to whether the response is a “message” and as to whether the
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`response is selected by a recipient, both issues were decided in favor of Defendants’ proposed
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`construction in Huawei as to the related term “manual response.” (Dkt. No. 120, at 2.)
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`Defendants argue that “the intrinsic record demonstrates that the ‘selected response’ is an actual
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`content-bearing message,” including the claim language, the specification, and the prosecution
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`history. (Id., at 2–4.) Defendants likewise argue that the claim language, the specification, and
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`the prosecution history demonstrate that a “selected response” must be selected by the recipient.
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`(Id., at 5–6.)
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`Plaintiff replies that “Claim 10 mandates that ‘selected response’ is broader than a
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`‘recipient selected response message’ because it has to be an ‘option’ that is chosen.” (Dkt.
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`No. 123, at 2.) “Claim 1 does not mirror Claim 10,” Plaintiff argues, “and this Court should not
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`disturb the patentee’s decision to pursue different coverage in Claim 10.” (Id.)
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`At the October 30, 2020 hearing, Plaintiff argued that a “selected response” message
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`need not include the full text of the selected response option but rather could include an
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`indication of which response option was selected. Defendants argued that the Court in Huawei
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`12 / 99
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`found that the “selected response” message must include the full “content” of the selected
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`response option. See Huawei at 41.
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`(2) Analysis
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`Claim 10 of the ’970 Patent recites (emphasis added):
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`10. A method of receiving, acknowledging and responding to a forced message
`alert from a sender PDA/cell phone to a recipient PDA/cell phone, wherein the
`receipt, acknowledgment, and response to said forced message alert is forced by a
`forced message alert software application program, said method comprising the
`steps of:
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`receiving an electronically transmitted electronic message; identifying said
`electronic message as a forced message alert, wherein said forced message alert
`comprises of a voice or text message and a forced message alert application
`software packet, which triggers the activation of the forced message alert software
`application program within the recipient PDA/cell phone;
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`transmitting an automatic acknowledgment of receipt to the sender
`PDA/cell phone, which triggers the forced message alert software application
`program to take control of the recipient PDA/cell phone and show the content of
`the text message and a required response list on the display recipient PDA/cell
`phone or to repeat audibly the content of the voice message on the speakers of the
`recipient PDA/cell phone and show the required response list on the display
`recipient PDA/cell phone; and
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`transmitting a selected required response from the response list in order to
`allow the message required response list to be cleared from the recipient’s cell
`phone display, whether said selected response is a chosen option from the
`response list, causing the forced message alert software to release control of the
`recipient PDA/cell phone and stop showing the content of the text message and a
`response list on the display recipient PDA/cell phone and[/]or stop repeating the
`content of the voice message on the speakers of the recipient PDA/cell phone;
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`displaying the response received from the PDA cell phone that transmitted
`the response on the sender of the forced alert PDA/cell phone; and
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`providing a list of the recipient PDA/cell phones [that] have automatically
`acknowledged receipt of a forced alert message and their response to the forced
`alert message.
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`As to the first dispute, a “selected response” must be selectable by the recipient. This
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`understanding is consistent with the context in which the term is used in the claim, which recites
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`that a selected response is chosen from a response list at a “recipient PDA/cell phone.” The
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`13 / 99
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`Court reached substantially the same conclusion in Huawei as to the similar term “manual
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`response” in Claim 1 of the ’970 Patent. See Huawei at 39–42.3
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`Disclosure cited by Plaintiff is further consistent with the Court’s understanding:
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`A required response list which will be either preinstalled in the phone application
`software or sent with the forced message alert will be presented to the user
`operator upon receipt of the forced message. When the forced text or voice alert
`is received, the user operator is presented with the required response list. In order
`to clear the forced text message alert from the user operator’s PC or PDA/cell
`phone display, the user operator is required to select a reply from this list.
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`’970 Patent at 7:17–24 (emphasis added). This disclosure that “the user operator is required to
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`select a reply” is consistent with interpreting the “selected response” as being selected by the
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`recipient. And although “patent coverage is not necessarily limited to inventions that look like
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`the ones in the figures,” MBO Labs., Inc. v. Becton, Dickinson & Co., 474 F.3d 1323, 1333 (Fed.
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`Cir. 2007), it is nonetheless noteworthy that Defendants’ proposal is consistent with Figure 4 of
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`the ’970 Patent, which discloses that “[t]he recipient selects a response from the response list and
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`the recipient cell phone and [sic] transmits the response to the sender[’]s cell phone.”
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`As to whether the “selected response” must be a “message,” Defendants read the recital
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`of “transmitting a selected required response from the response list in order to allow the message
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`required response list to be cleared from the recipient’s cell phone display” as meaning that the
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`“response” is a “message.” In the context of the claim as a whole, however, this recital of
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`“message” is better read as referring to the required response list being part of the forced
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`3 Huawei also considered prosecution history (see Huawei at 41), but the cited statements
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