Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 1 of 15 PageID #: 7873
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`
`§
`Case No. 2:22-cv-00263-JRG-RSP
`§
`
`JURY TRIAL DEMANDED
`§
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`
`
`v.
`
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`
`Defendants.
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC’S
`REPLY CLAIM CONSTRUCTION BRIEF
`
`
`
`
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 2 of 15 PageID #: 7874
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`TABLE OF CONTENTS
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`Page(s)
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`“status data” ........................................................................................................................ 1
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`“means for obtaining . . .” ................................................................................................... 3
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`“means for displaying . . .” ................................................................................................. 4
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`“means for presenting . . .” ................................................................................................. 6
`
`A.
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`B.
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`C.
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`D.
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`Sufficient Structure is Disclosed ............................................................................. 6
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`AGIS’s Alternative Structure Does Not Render the Claim Term
`Indefinite ................................................................................................................. 7
`
`The Reexamination History of the ’970 Patent Does Not Support an
`Indefiniteness Finding ............................................................................................. 8
`
`The Life360 Litigation History is Irrelevant ........................................................... 8
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`“which triggers the forced message alert software . . .” ................................................... 10
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`“group” .............................................................................................................................. 10
`
`
`I.
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`II.
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`III.
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`IV.
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`V.
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`VI.
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`
`
`i
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 3 of 15 PageID #: 7875
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
`Advanced Ground Info. Sys., Inc. v. Life360, Inc.,
`830 F.3d 1341 (Fed. Cir. 2016)..................................................................................................9
`
`Apple, Inc. v. Ameranth, Inc.,
`842 F.3d 1229 (Fed. Cir. 2016)................................................................................................10
`
`Cardiac Pacemakers, Inc. v. St. Jude Med., Inc.,
`296 F.3d 1106 (Fed. Cir. 2002)..................................................................................................8
`
`Cioffi v. Google, Inc.,
`632 F. App’x 1013 (Fed. Cir. 2015) ..........................................................................................1
`
`Finisar Corp. v. DirecTV Grp., Inc.,
`523 F.3d 1323 (Fed. Cir. 2008)..............................................................................................4, 7
`
`Innovative Display Techs. LLC v. Hyundai Motor Co.,
`No. 2:14-CV-201-JRG, 2015 WL 2090651 (E.D. Tex. May 4, 2015) ......................................7
`
`Intell. Ventures I LLC v. T-Mobile USA, Inc.,
`902 F.3d 1372 (Fed. Cir. 2018)..........................................................................................3, 4, 5
`
`Intelligent Automation Design, LLC v. Zimmer Biomet CMF and Thoracic, LLC,
`799 F. App’x 847 (Fed. Cir. 2020) ............................................................................................8
`
`Interactive Gift Express, Inc. v. Compuserve Inc.,
`256 F.3d 1323 (Fed. Cir. 2001)..................................................................................................1
`
`Keranos, LLC v. Silicon Storage Tech., Inc.,
`797 F.3d 1025 (Fed. Cir. 2015)..................................................................................................4
`
`Nevro Corp. v. Boston Sci. Corp.,
`955 F.3d 35 (Fed. Cir. 2020)......................................................................................................3
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..................................................................................................1
`
`WAPP Tech. Ltd. P’ship v. Bank of Am., N.A.,
`No. 4:21-CV-670, 2022 WL 2463569 (E.D. Tex. July 6, 2022) ...............................................2
`
`Statutes
`35 U.S.C. § 112, ¶ 6 .........................................................................................................................9
`
`ii
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 4 of 15 PageID #: 7876
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`I.
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`“status data” 1
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`Defendants disregard this term appears within the larger phrase “status data associated with
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`the recipient PDA/cell phone,” which provides context for the construction of this term. As a
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`preliminary matter, “status data” appears in the asserted claims as “obtaining location and status
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`data associated with the recipient PDA/cell phone.” Dkt. 87 at 8. “In construing claims, the
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`analytical focus must begin and remain centered on the language of the claims themselves, for it
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`is that language that the patentee chose to use to ‘particularly point[] out and distinctly claim[] the
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`subject matter which the patentee regards as his invention.’”2
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`The use of “status data associated with the recipient PDA/cell phone” itself within the
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`asserted claims is not inherently ambiguous. The claim itself clarifies any ambiguity by requiring
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`the status data to be associated with a device. Nonetheless, a POSITA would recognize examples
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`of such device states, such as connectivity, activity, or battery. Dkt. 87 at 9-10. Defendants attempt
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`to introduce ambiguity to this claim term by arguing it is unclear whether the “status data
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`associated with the recipient PDA/cell phone” refers to the “user” or the “device” of the “recipient
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`PDA/cell phone.” Dkt. 97 at 3. However, there is no indication based on the plain language of the
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`claim term and its usage is ambiguous. The existence of the status of a response in the specification
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`does not render ambiguous “status data associated with the recipient PDA/cell phone.”
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`Defendants’ reliance on isolated disclosures of “status” to argue “status data” should be construed
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`in the context of status of a manual response is divorced from the claim limitation.3 Defendants
`
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`1 AGIS notes Defendants’ agreement to adopt AGIS’s proposal of plain and ordinary meaning or no construction for
`the “predetermined network of participants, wherein each participant has a similarly equipped PDA/cell phone” term.
`2 Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001); see also Phillips v. AWH
`Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (“Quite apart from the written description and the prosecution history,
`the claims themselves provide substantial guidance as to the meaning of particular claim terms.”) (internal citation
`omitted).
`3 Id.; see Cioffi v. Google, Inc., 632 F. App’x 1013, 1023 (Fed. Cir. 2015) (“We, thus, reject Google’s argument, and
`find that the few ‘passing references’ to ‘user’ files or data are insufficient to alter the well-understood, objective
`
`
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 5 of 15 PageID #: 7877
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`and its expert admit they rely on disclosures of “status.” See Dkt. 97 at 3. Defendants create a
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`dispute by relying on these disclosures of “status” to argue “there are at least two reasonable
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`interpretations of ‘status data.’” Id. at 4. But, to the extent the specification’s “status of a response”
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`can be used to determine a “status data associated with the recipient PDA/cell phone,” is not an
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`issue of indefiniteness but of breadth.4 Defendants are unable to identify any type of “status data
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`associated with the recipient PDA/cell phone” is unascertainable and renders this term indefinite.
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`Defendants ignore explicit recitations of “status data” as found within the specification to focus on
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`disclosures of “status.” See, e.g., Dkt. 97 at 3-4.5
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`Defendants misrepresent the arguments made during reexamination of the ’970 Patent to
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`argue uncertainty. Specifically, Defendants point to a portion of the examiner interview where the
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`Examiner stated “[w]ith regard to proposed new claims 15 and 16, Patent Owner’s representatives
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`indicated the corresponding disclosure is found in the ’728 Patent, incorporated by reference into
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`the ’970 patent disclosure.” Dkt. 97-1 at 1767. Defendants only point to a single disclosure of
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`“status” to argue this term is indefinite. Dkt. 97 at 4-5. However, a POSITA would recognize the
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`’970 Patent, or its ancestor, the ’728 Patent’s recitation of “other data” or “other status data”
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`describe status data comprising of telephone status, GPS status, or other statuses. Dkt. 87 at 10-
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`11. A POSITA would understand battery status and network connectivity status would also fall
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`within the scope of “other status data.” Id. at 10-11.
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`Defendants’ citation to the examiner interview and reexamination history is misleading.6
`
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`meaning of ‘critical file’ agreed upon by the experts. We therefore, reverse the district court’s holding that ‘critical
`file’ in claim 21 of the ’103 patent is indefinite.”).
`4 See WAPP Tech. Ltd. P’ship v. Bank of Am., N.A., No. 4:21-CV-670, 2022 WL 2463569, at *8 (E.D. Tex. July 6,
`2022) (“The breadth of the word ‘interface,’ at least in the context of the patents-in-suit, does not demonstrate any
`lack of structure or otherwise give rise to any indefiniteness.”).
`5 For example, Figure 1b of the ’970 Patent specifically recites “provide ACS that causes the exchange of identity,
`location and status data between the participants. . . .” Dkt. 87-2, ’970 Patent at FIG. 1b.
`6 Dkt. 97 at 5 (“Further, when commenting on the ‘status data’ term added during reexamination, the examiners cited
`‘the algorithm described in the ’970 Patent at col. 3, lines 52-67.’”).
`
`2
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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 6 of 15 PageID #: 7878
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`However, what the reexamination states is “[t]he prior art cited in the Request fails to teach or
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`fairly suggest means for obtaining location and status data associated with the recipient
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`PDA/cell phone (i.e., the algorithm described in the ’970 patent at col. 3, lines 52-67). . . .” Dkt.
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`97-1 at 1928.7 Defendants do not argue that “status data” alone is a means plus function term that
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`requires an algorithm. Pointing to these disclosures to argue that “status data” is ambiguous,
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`misleading, and merely demonstrates Defendants’ attempt to further introduce confusion.
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`Nonetheless, Defendants’ arguments that “status data” could be subject to multiple constructions
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`and is thus indefinite is contrary to established case law.8 Defendants do not dispute “status data
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`associated with a recipient PDA/cell phone” is not a term of degree or an open-ended numerical
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`range or a subject term. Dkt. 87-6, ¶ 39. A POSITA would have been able to ascertain the meaning
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`of “status data” with reasonable certainty and accordingly, this term is not indefinite.
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`II.
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`“means for obtaining . . .”
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`Defendants propose for the first time the function of this term is “indefinite because the
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`function . . . recites ‘status data’ that is indefinite.” Dkt. 97 at 8. Throughout claim construction,
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`Defendants maintained the function of this term is “obtaining location and status data associated
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`with the recipient PDA/cell phone.” Dkt. 67-3 at 3. The case cited to by Defendants, Intell.
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`Ventures I LLC v. T-Mobile USA, Inc., 902 F.3d 1372 (Fed. Cir. 2018), was from 2018 and
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`Defendants had ample opportunity to consider their proposed constructions during the exchange
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`of preliminary constructions and evidence. While AGIS objects to Defendants’ argument that the
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`function of this claim term is indefinite in its newly proposed claim construction, AGIS addresses
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`7 Emphasis added unless otherwise noted.
`8 See Nevro Corp. v. Boston Sci. Corp., 955 F.3d 35, 41 (Fed. Cir. 2020) (“The test for indefiniteness is whether the
`claims, viewed in light of the specification and prosecution history, ‘inform those skilled in the art about the scope of
`the invention with reasonable certainty.’ The test is not merely whether a claim is susceptible to differing
`interpretations.”).
`
`3
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 7 of 15 PageID #: 7879
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`Defendants’ arguments below.9 Unlike the “QoS requirements” term found in Intell. Ventures I,
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`“status data” is not a “term of degree” that is “purely subjective.’” 902 F.3d 1372 at 1381.
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`Defendants do not dispute this.
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`Defendants’ argument the algorithm is indefinite because it does not provide in a step-by-
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`step manner is incorrect. Rather, the Federal Circuit has held a patentee is permitted to “express
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`that algorithm in any understandable terms including as a mathematical formula, in prose, or as a
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`flow chart, or in any other manner that provides sufficient structure.”10 The algorithm identified
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`by AGIS includes steps related to the PDA/cell phone receiving messages, including status
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`messages, from other PDA/cell phone(s) forwarded from a server via TCP/IP communications.
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`Dkt. 87 at 14-15; Dkt. 87-6, ¶ 46. Like the “status data” term, a POSITA would have been able to
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`ascertain the function and structure of this term with reasonable certainty and it is not indefinite.
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`III.
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`“means for displaying . . .”
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`Defendants contend the proposed structure is “the sender PDA/cell phone including display
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`16 and configured to implement the algorithm described in the ’970 Patent at 4:55-59, 5:37-44,
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`6:27-37.” Dkt. 97 at 10. Defendants’ proposed structure overlaps with AGIS’s alternative
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`structure. AGIS’s structure is consistent with the field of invention and reading the specification
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`of the ’970 Patent. Defendants attempt to conflate the structures of “displaying” with “presenting.”
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`As shown, AGIS’s proposed structure is consistent with other “means for” terms that
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`include “displaying.” See Dkt. 87 at 12-13. While Defendants argue a “receiver and/or
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`transreceiver” is not necessary because there is no “receiving” as with the prior “means for” terms,
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`AGIS’s proposed structure considers the PDA/cell phones not only display but also receive, for
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`
`9 See Keranos, LLC v. Silicon Storage Tech., Inc., 797 F.3d 1025, 1035 (Fed. Cir. 2015) (“The purpose of this rule,
`and the local patent rules in general, is to ‘require parties to crystallize their theories of the case early in the litigation’
`so as to ‘prevent the ‘shifting sands’ approach to claim construction.’”) (internal citation omitted).
`10 See Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008).
`
`4
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 8 of 15 PageID #: 7880
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`example, a geographical map with georeferenced entities” to display. AGIS’s proposed structure
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`is consistent with the Court’s prior constructions.11 To require otherwise would contradict the
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`Court’s prior holdings.
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`To the extent the Court finds this limitation is a computer-implemented function, the
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`alternative structure proposed by AGIS should be adopted by the Court. AGIS disagrees AGIS’s
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`proposed algorithm is “underinclusive” and “overinclusive.” The algorithm as proposed by AGIS
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`“includes steps related to ’provid[ing] for a geographical map and georeferenced entities that are
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`shown as display portion 16b,’ ’display symbols depict permanent geographical locations and
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`buildings,’ ’[t]he screen display 16b, which is a touch screen, provides x and y coordinates of the
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`screen 16b to the CPU’s software from a map in a geographical database,’ and ’[t]he map, fixed
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`entities, events and PDA/cell phone device communication net participants’ latitude and longitude
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`information is related to the ’x’ and ’y’ location on the touch screen display map by a mathematical
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`correlation algorithm.’” Dkt. 87 at 13.
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`Defendants’ argument the structure includes 5:40-44 of the ’970 Patent’s specification is
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`broader than the claimed function. See Dkt. 97 at 12. As admitted by Defendants, 5:40-44 includes
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`disclosures for “relat[ing] the x and y coordinates to latitude and longitude and can access a
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`communications net participant’s symbol or a fixed or movable entity’s symbols as being the one
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`closest to that point.” Id. However, the function, as agreed by parties, is for “displaying a
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`geographical map with georeferenced entities on the display of the sender PDA/cell phone.”
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`Similarly, Defendants’ argument the structure is overinclusive because it includes 5:10-14 of the
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`11 AGIS’s proposed structure is also consistent with the Court’s prior holdings that the “PDA/cell phone must belong
`to the sender” and that “[t]o the extent the claim distinguishes between ‘a sender PDA/cell phone and at least one
`recipient PDA/cell phone for each electronic message,’ this distinction need not be set forth as part of the
`corresponding structure for the present term.” Dkt. 87 at 13.
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`5
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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 9 of 15 PageID #: 7881
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`’970 Patent is incorrect.12 The function requires “displaying a geographical map with
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`georeferenced entities on the display of the sender PDA/cell phone,” and discloses “display[ing]
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`symbols depict permanent geographical locations and buildings are shown.” Accordingly, this
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`disclosure corresponds and should be included in the proposed structure.
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`IV.
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`“means for presenting . . .”
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`Defendants maintain the structure is indefinite for insufficient disclosure, relying on the
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`prior claim construction of an unrelated term from an entirely different patent, that is not asserted
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`here. Defendants argue the “symbol generator” term from the ’728 Patent is “analogous” that was
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`previously found indefinite, and therefore, should also be found indefinite. It is undisputed the
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`claim term at issue here is “means for presenting a recipient symbol on the geographical map
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`corresponding to a correct geographical location of the recipient PDA/cell phone.” There is no
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`“symbol generator” term found in the ’970 Patent or at dispute in these proceedings. Rather,
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`Defendants attempt to conflate this as the “means for presenting . . .” term with the “symbol
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`generator” term. As shown, “presenting” indicates a step equivalent or substantially similar to
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`“showing on a display.” Dkt. 87 at 16. Defendants do not propose the proposed function of this
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`claim term is “generating a symbol,” as was found with the “symbol generator” term. See generally
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`Dkt. 97 at 14-28. AGIS has demonstrated the proposed structure of this term is sufficiently definite.
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`A.
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`Sufficient Structure is Disclosed
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`AGIS maintains sufficient structure is disclosed by the ’970 Patent and this claim term is
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`not indefinite. Defendants agree the proposed function is “presenting a recipient symbol on the
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`geographical map corresponding to a correct geographical location of the recipient PDA/cell
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`12 As admitted by Defendants, 5:10-14 of the ’970 Patent states, “[t]hrough use of the software switches, the operator
`can also manipulate the geographical map 16b or chart display. When looking at FIG. 1a, display symbols depict
`permanent geographical locations and buildings are shown.” Dkt. 87-2 at 5:10-14.
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`6
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 10 of 15 PageID #: 7882
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`phone.” Yet, Defendants argue because there is purportedly no disclosure of “how” or that there
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`is no algorithm, this claim term must be found indefinite. The specification discloses “[t]he screen
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`display 16b, which is a touch screen, provides x and y coordinates of the screen 16b to the CPU’s
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`software from a map in a geographical database.” Ex. 87-2, 5:37-40.13 An algorithm need not be
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`expressed as a mathematical formula in order to provide sufficient structure.14 AGIS does not point
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`to “functional terms unbounded by any reference to structure in the specification.” Dkt. 97 at 16.
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`AGIS points to specific disclosures of the specification of the ’970 Patent which demonstrate the
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`specific structure associated with the “means for presenting . . .” function.
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`As stated by AGIS’s expert, a POSITA “would have recognized that the patentee’s use of
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`‘presenting’ indicates a step associated with showing on the display a symbol that already exists
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`at the specific point in time of the step of ‘presenting.’” Dkt. 87 at 16. Dr. Brogioli also stated “the
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`step of ’presenting’ cannot be interpreted to include or otherwise subsume any prior or unclaimed
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`steps for making the symbol or determining a correct location for the phone represented by the
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`symbol.” Id. at 16-17. AGIS disagrees it is attempting to claim “all possible means of achieving
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`[the recited] function,” as alleged by Defendants, where a POSITA would understand there is a
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`sufficiently disclosed structure based on the identified disclosures.15
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`B.
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`AGIS’s Alternative Structure Does Not Render the Claim Term Indefinite
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`AGIS’s proposal does not indicate the hardware is itself insufficient to satisfy the structural
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`requirement and maintains the hardware is sufficient to perform the function of “means for
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`presenting . . .” as proposed.
`
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`13 Further, “[t]he software has an algorithm that relates the x and y coordinates to latitude and longitude and can access
`a communications net participant’s symbol or a fixed or movable entity’s symbol as being the one closest to that
`point.” Id. at 5:40-44.
`14 See Finisar Corp., 523 F.3d at 1340.
`15 See Dkt. 87 at 17-18; see Innovative Display Techs. LLC v. Hyundai Motor Co., No. 2:14-CV-201-JRG, 2015 WL
`2090651, at *17 (E.D. Tex. May 4, 2015).
`
`7
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 11 of 15 PageID #: 7883
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`Defendants argue for the first time the proposed function here is “really two functions,”
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`and both must be “adequately supported by structure for the term to be sufficiently definite.” Dkt.
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`97 at 18. AGIS proposes the alternative structure in view of Defendants’ assertion there are two
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`functions found within this claim term.16 Nonetheless, AGIS proposes the alternative structure of
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`software to the extent the Court determines this limitation is a computer-implemented function that
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`requires more than the identified hardware components. This alternative structure is sufficiently
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`identified and disclosed in the specification. The algorithm recited in the ’970 Patent at 6:25-27
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`and 6:33-37 “describes the steps of placing the symbol on the map and relating the x-y display
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`coordinates with the latitude and longitude coordinates.” Dkt. 87 at 19. Further, the specification
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`supports AGIS’s proposal. See Dkt. 87-2 at 5:35-44. Accordingly, a POSITA would understand
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`the algorithm based on these disclosures.17
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`C.
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`The Reexamination History of the ’970 Patent Does Not Support an
`Indefiniteness Finding
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`The reexamination history does not contradict AGIS’s proposals. Defendants point to the
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`Examiner’s citation to 5:28-44 of the ’970 Patent’s specification to disclose the algorithm. But
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`Defendants cherry-pick self-serving portions of the reexamination history while they ignore the
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`Examiner found sufficient structure, which further supports a finding of no indefiniteness. Dkt. 97
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`at 20-21. Defendants identify no portion of the reexamination record in which AGIS contradicts
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`itself or in which AGIS makes any statement that calls into question the existence of sufficient
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`structure. Accordingly, Defendants fail to identify any contradictory portion of the reexamination
`
`record, and the reexamination history does not support Defendants’ indefiniteness argument.
`
`D.
`
`The Life360 Litigation History is Irrelevant
`
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`16 See Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1117 (Fed. Cir. 2002).
`17 See Intelligent Automation Design, LLC v. Zimmer Biomet CMF and Thoracic, LLC, 799 F. App’x 847, 852 (Fed.
`Cir. 2020).
`
`8
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 12 of 15 PageID #: 7884
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`As detailed in AGIS’s Motions to Dismiss and Strike, the litigation history of the ’728
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`Patent is irrelevant. See Dkt. 89. It is undisputed the ’728 Patent is not asserted in this case and the
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`same claim term is not at issue here. In the Life360 Litigation, the term “symbol generator” was
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`found indefinite for lack of corresponding structure in the specification. But that has no bearing
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`here. The “symbol generator” term requires code and algorithm for the creation of symbols, i.e.,
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`generation of symbols. The Federal Circuit and the District Court found that the specification did
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`not disclose sufficient structure for generation. However, Defendants do not propose the function
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`here requires the “generation of symbols,” which does not appear anywhere in this limitation. The
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`Federal Circuit affirmed the district court’s finding that the term “symbol generator” as found in
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`the ’728 Patent invokes § 112, ¶ 6.18 The Federal Circuit also agreed with the district court’s
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`finding that the term “symbol generator” is indefinite. Id. at 1349.19 Accordingly, the Federal
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`Circuit held that “[t]he function of generating symbols must be performed by some component
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`of the patents-in-suit; however, the patents-in-suit do not describe this component.” Id.
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`Defendants’ attempt to conflate these distinct terms reveals its attempt to support an
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`indefiniteness finding based on a different patent and different claim term. The “means for
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`presenting . . .” term is not the same function as “symbol generator.” “Symbol generator” is not
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`found within the asserted claims of the ’970 Patent. Defendants cannot reasonably propose that
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`“means for presenting . . .” requires symbol generation nor its equivalent. By relying on the Life360
`
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`18 Advanced Ground Info. Sys., Inc. v. Life360, Inc., 830 F.3d 1341, 1347 (Fed. Cir. 2016) (“According to the district
`court, ‘[a] plain reading of the term in context of the relevant claim language suggests the term ‘symbol generator’ is
`analogous to a ‘means for generating symbols’ because the term is simply a description of the function performed.”);
`id. at 1348 (“Accordingly, because the term ‘symbol generator’ does not describe anything structural, the district court
`was correct to conclude that the asserted claims which recite the term ‘symbol generator’ are subject to 35 U.S.C. §
`112, ¶ 6.”).
`19 Specifically, the Federal Circuit noted that “[a]lthough the district court recognized that ‘the specification []
`describe[s], in general terms, that symbols are generated based on the latitude and longitude of the participants,’ it
`nonetheless determined that the specification ‘fails to [disclose] an ’algorithm’ or description as to how those symbols
`are actually ‘generated.’” Id.
`
`9
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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 13 of 15 PageID #: 7885
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`litigation history and the findings of indefiniteness with respect to the “symbol generator” term,
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`Defendants ignore the “generate” portion of this claim term.
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`V.
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`“which triggers the forced message alert software . . .”
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`Defendants point to the reexamination history to support their construction. Dkt. 97 at 28-
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`29. This portion of the reexamination history does not support Defendants’ proposal that the
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`construction must include “lock the display.”20 This does not necessarily require a construction
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`limiting this limitation to “locking the display.” Moreover, Defendants misrepresent the record by
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`stating that the “examiner made clear that ’taking control’ means the application program ’does
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`not allow a recipient to clear’ the display.” Dkt. 97 at 29. This purported finding is nowhere, and
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`the portion cited by Defendants merely discusses the application of the prior art (not the meaning
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`of the term). Dkt. 97-1 at 1850. Defendants’ inclusion of “lock the display of the recipient PDA/cell
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`phone until a response is selected from the response list” renders superfluous transmitting a
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`selected required response from the response list in order to allow the message required response
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`list to be cleared from the recipient’s cell phone display” redundant.21 Defendants’ proposed
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`construction is not supported by the claims or the specification.
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`VI.
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`“group”
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`The term “group” should be construed in light of the parties’ disagreement regarding the
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`construction of this term. See Dkt. 82. AGIS has submitted its arguments with regard to this claim
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`term in an effort to minimize any waste of the Court’s and the parties’ resources.22
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`20 The reexamination history states “[t]he examiner maintains that Kubala teaches such ’taking control.’ Kubala
`teaches 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, and further, Kubala discloses that ’the user must reply to the received
`e-mail in some manner before the e-mail application will allow the user to perform some other action.” Dkt. 97-1 at
`1850.
`21 See Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1237 (Fed. Cir. 2016).
`22 Defendants have declined to address AGIS’s claim construction arguments with respect to this term and requests
`“supplemental claim construction proceedings to address the construction of ‘participants,’” and accordingly, AGIS
`reserves the right to address any supplemental arguments by Defendants.
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`10
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`

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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 14 of 15 PageID #: 7886
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`Dated: August 11, 2023
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`Respectfully submitted,
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` /s/ Vincent J. Rubino, III
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`Samuel F. Baxter
`State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`ATTORNEYS FOR PLAINTIFF
`AGIS SOFTWARE DEVELOPMENT LLC
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`11
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`Case 2:22-cv-00263-JRG-RSP Document 103 Filed 08/11/23 Page 15 of 15 PageID #: 7887
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on August 11, 2023.
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`/s/ Vincent J. Rubino, III
` Vincent J. Rubino, III
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