Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 1 of 16 PageID #: 13964
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`Plaintiff,
`
`v.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`
`
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`
`
`
`
`
`
`
` Civil Action No. 2:22-cv-00263-JRG-RSP
`
` JURY TRIAL DEMANDED
`
`Defendants.
`
`
`
`
`DEFENDANTS’ RESPONSIVE SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF
`
`
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 2 of 16 PageID #: 13965
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`ARGUMENT FOR DISPUTED TERMS ......................................................................... 1
`
`A.
`
`“participants” (’970 Patent - Claim 2) ................................................................... 1
`
`1.
`
`2.
`
`3.
`
`4.
`
`The Claim Language Distinguishes “participants” From Devices ............ 1
`
`The Specification Equates “participants” With “users”............................. 2
`
`Dictionaries Support Construing “participants” As “users” ...................... 4
`
`AGIS’s Arguments Are Meritless And Belied By Its Prior
`Positions ..................................................................................................... 5
`
`B.
`
`“group” (’838 Patent - Claims 1, 19, and 54; ’829 Patent - Claims 1, 34,
`35; ’123 Patent - Claims 1, 14, 17, 23, 36) ............................................................ 7
`
`
`
`
`
`
`
`- i -
`
`
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 3 of 16 PageID #: 13966
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`
`Cases
`
`Asyst Techs., Inc. v. Amtrak, Inc.,
`402 F.3d 1188 (Fed. Cir. 2005) .................................................................................................. 4
`
`Baran v. Medical Device Techs., Inc.,
`616 F.3d 1309 (Fed. Cir. 2010) .............................................................................................. 3, 7
`
`Becton, Dickinson & Co. v. Tyco Healthcare Grp. LP,
`616 F.3d 1249 (Fed. Cir. 2010) .................................................................................................. 2
`
`CyWee Grp. Ltd. v. Samsung Elecs. Co.,
`No. 2:17–CV–140–RWS–RSP, 2018 WL 574871 (E.D. Tex. Jan. 26, 2018) ........................... 6
`
`NeoMagic Corp. v. Trident Microsystems, Inc.,
`287 F.3d 1062 (Fed. Cir. 2002) .............................................................................................. 6, 9
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) .............................................................................................. 1, 5
`
`Praxair, Inc. v. ATMI, Inc.,
`543 F.3d 1306 (Fed. Cir. 2008) .............................................................................................. 4, 8
`
`Sinorgchem Co., Shandong v. Int’l Trade Comm’n,
`511 F.3d 1132 (Fed. Cir. 2007) .................................................................................................. 2
`
`SmartPhone Techs. LLC v. HTC Corp.,
`No. 6:10–CV–580–LED–JDL, 2013 WL 1136972 (E.D. Tex. Mar. 18, 2013) ..................... 3, 7
`
`Thorner v. Sony Computer Ent’t Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012) .................................................................................................. 5
`
`
`
`
`
`
`
`
`-ii-
`
`
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 4 of 16 PageID #: 13967
`
`
`
`TABLE OF EXHIBITS
`
`
`3 (Dkt. 97-3)
`4 (Dkt. 97-4)
`
`5 (Dkt. 97-5)
`
`6 (Dkt. 97-6)
`
`7 (Dkt. 97-7)
`
`8 (Dkt. 97-8)
`9
`10
`11
`
`Document Description
`Exhibit No.
`Exhibits To Defendants’ Claim Construction Briefs (Dkt. 97 and this brief)
`1 (Dkt. 97-1)
`U.S. Patent No. 8,213,970 – Excerpts from ’970 Reexam File History
`AGIS’s Rebuttal Claim Construction Brief, AGIS v. Life360, Inc., 9:14-
`2 (Dkt. 97-2)
`cv-80651, Dkt. No. 58 (Oct. 2, 2014)
`U.S. Patent No. 7,031,728
`Decl. of Dr. Benjamin Goldberg in Support of AGIS’s Claim
`Construction, AGIS v. Life360, Inc., 9:14-cv-80651, Dkt. No. 48-5 (Sept.
`17, 2014)
`Transcript of Markman Hearing, AGIS v. Life360, 14-cv-80651, Dkt. No.
`71 (Nov. 8, 2014)
`U.S. Federal Circuit, Reply Brief for Plaintiff-Appellant, AGIS, Case No.
`15-1732, Dkt. No. 39
`Decl. of Tim Williams, Ph.D. Regarding Claim Construction for Samsung
`(June 16, 2023)
`U.S. Patent No. 8,213,970 – Ex Parte Reexamination Certificate
`Excerpt from New Oxford American Dictionary (3rd ed. 2010)
`Excerpt from Cambridge Dictionary of American English (2nd ed. 2008)
`Excerpt from Random House Webster’s College Dictionary (Updated ed.
`2005)
`Excerpt from Cambridge Advanced Learner's Dictionary (2003)
`Excerpt from AGIS’s Claim Construction Brief, AGIS v. Huawei Device
`USA Inc., et al., 2:17-cv-513-JRG, Dkt. No. 165 (E.D. Tex. July 26, 2018)
`Excerpt from December 22, 2020 Deposition Transcript of Joseph
`McAlexander III in AGIS v. Samsung et al., 2:19-cv-361-JRG (E.D. Tex.)
`Exhibits To Plaintiff’s Claim Construction Briefs (Dkts. 87, 103, 129)
`A (Dkt. 87-2)
`U.S. Patent No. 8,213,970
`B (Dkt. 87-3)
`U.S. Patent No. 9,467,838
`C (Dkt. 87-4)
`U.S. Patent No. 9,749,829
`D (Dkt. 87-5)
`U.S. Patent No. 9,820,123
`E (Dkt. 87-6)
`Decl. of Michael Brogioli, Ph.D. Regarding Claim Construction for AGIS
`(June 16, 2023)
`Claim Construction Order, AGIS v. Huawei Device USA Inc., et al., 2:17-
`cv-00513-JRG, Dkt. 205 (E.D. Tex. Oct. 10, 2018)
`Claim Construction Order, AGIS v. Google LLC, et al., 2:19-cv-00361-
`JRG, Dkt. 147 (E.D. Tex. Dec. 8, 2020)
`Claim Construction Order, AGIS v. T-Mobile USA, Inc., et al., 2:21-cv-
`00072-JRG, Dkt. 213 (E.D. Tex. Nov. 10, 2021)
`Document entitled “Sign in on a device that’s not your device” taken from
`https://support.google.com/accounts/answer/2917834/hl=em&ref_topic
`Document entitled “Delete, switch, or add users” taken from
`https://support.google.com/android/answer/2865483#zippy==%2Cdelete
`
`12
`13
`
`14
`
`F (Dkt. 87-7)
`
`G (Dkt. 87-8)
`
`H (Dkt. 87-9)
`
`I (Dkt. 129-2)
`
`J (Dkt. 129-3)
`
`-iii-
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 5 of 16 PageID #: 13968
`
`
`
`Defendants hereby submit their Markman brief addressing two related disputes over
`
`whether the word “participants” (1) means “users” as Defendants propose or (2) means “users”
`
`and/or “devices” as AGIS proposes. “Participants” appears in Claim 2 of the ’970 Patent and
`
`within the agreed construction of the term “group” in all claims of the ’838, ’829, and ’123 Patents.
`
`All four patents are related, and the ’838, ’829, and ’123 Patents have a common specification,
`
`which overlaps substantially with the ’970 Patent’s specification. The specifications, claims,
`
`dictionaries, as well as AGIS’s past admissions, all support that “participants” means “users.”
`
`I.
`
`ARGUMENT FOR DISPUTED TERMS
`
`A.
`
`“participants” (’970 Patent - Claim 2)
`
`Plaintiff’s Proposal
`Plain meaning (which Plaintiff contends is “devices” or “users”)
`
`In the context of the ’970 Patent, “participants” means “users,” and does not also include
`
`Defendants’ Proposal
`“users”
`
`“devices” as AGIS proposes, because: (1) the claim language distinguishes between a “participant”
`
`and devices such as a “PDA/cell phone”; (2) the specification equates “participants” with “users”;
`
`and (3) dictionaries define a “participant” as a “person.” AGIS offers no contrary evidence and
`
`relies instead on the false assumption that the plain meaning of “participant” could include a
`
`“device” (i.e., a physical object). AGIS also raises irrelevant arguments about this Court’s prior
`
`construction of unrelated terms and the impact that the construction could have on infringement.
`
`1.
`
`The Claim Language Distinguishes “participants” From Devices
`
`“[T]he context in which a term is used in the asserted claim can be highly instructive” as
`
`to the meaning of a term. Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc).
`
`Here, the context in which “participants” is used in Claim 2 shows that AGIS’s proposal that the
`
`term could refer to “devices” is incorrect. “Participants” appears in the limitation: “a
`
`predetermined network of participants, wherein each participant has a similarly equipped
`
`1
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 6 of 16 PageID #: 13969
`
`
`
`PDA/cell phone that includes a CPU and a touch screen display a CPU and memory.” Ex. A at Cl.
`
`2. The claim’s recitation that each “participant has a similarly equipped PDA/cell phone” means
`
`that each “participant” possesses a device (i.e., a “PDA/cell phone”). Thus, a “participant” cannot
`
`itself be a device, as AGIS proposes. Indeed, substituting “device” for “participant” leads to the
`
`illogical requirement that: “each [device] has a similarly equipped PDA/cell phone.” But a device
`
`cannot “have” another device. Thus, a “participant” must be a user who “has” such a device.
`
`On similar facts in Becton, Dickinson & Co. v. Tyco Healthcare Grp. LP, the claim
`
`language recited a “[1] spring means connected to said [2] hinged arm,” and the Federal Circuit
`
`held that by “its plain terms . . . the spring means and the hinged arm are separate structures which
`
`are ‘connected to’ each other.” 616 F.3d 1249, 1253-54 (Fed. Cir. 2010). The Federal Circuit also
`
`disagreed with the district court’s finding that the “spring means” and “hinged arm” could be “one
`
`and the same” structure given the recitation that the two elements are “connected to” each
`
`other. Id. at 1255. Likewise here, Claim 2’s recitation that each “participant” “has” a “device”
`
`such as a “PDA/cell phone” signals that “participants” and “devices” mean different things and
`
`compels rejecting construing “participants” as including “devices.”
`
`2.
`
`The Specification Equates “participants” With “users”
`
`The specification reinforces that “participants” means “users.” First, the specification
`
`expressly equates “participants” with “users”: “The users are the network participants.” Ex. A at
`
`3:56-57. The use of the verb “are” in the phrase “[t]he users are the network participants” defines
`
`“participants” as “users.” See Sinorgchem Co., Shandong v. Int’l Trade Comm’n, 511 F.3d 1132,
`
`1136 (Fed. Cir. 2007) (“[T]he word ‘is,’ . . . used here in the specification, may ‘signify that a
`
`patentee is serving as its own lexicographer.’”).
`
`Second, beyond its express definition, the specification uses “participants” and “users”
`
`interchangeably to mean the same thing:
`
`
`
`2
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 7 of 16 PageID #: 13970
`
`
`
`• “In order to initiate a telephone call to the PDA/cell phone user (communication net
`participant) represented by symbol . . . .” Ex. A at 5:45-47;
`
`• “A second PDA/cell phone user (communication net participant) is represented by symbol
`34 which is a small square (but could be any shape or icon) to represent an individual cellular
`phone device in the display area.” Id. at 5:54-57.
`
`
`
`The law is clear that a specification’s use of two terms interchangeably supports construing
`
`the terms to have the same meaning. Baran v. Medical Device Techs., Inc., 616 F.3d 1309, 1316
`
`(Fed. Cir. 2010) (construing the terms “releasably” and “detachable” to have the same meaning
`
`based on their interchangeable use in the specification). Applying these principles in Smartphone
`
`Techs. LLC v. HTC Corp., this District construed “computer system” to mean an “electronic
`
`device” because the specification used the two terms interchangeably. No. 6:10–CV–580–LED–
`
`JDL, 2013 WL 1136972, at *13-15 (E.D. Tex. Mar. 18, 2013). The same result is warranted here.
`
`Third, like the claims, the specification describes a “participant” as possessing or using a
`
`device, as opposed to being a device. For example, it states that “[e]ach participant user would
`
`have a device” and describes how, “using the present invention, each participant can touch and
`
`point to call . . . other net participants symbolically displayed on the map, each of whom has a
`
`device.” Ex. A at 5:26-27, 6:13-16. Because each “participant” “has” a device, a “participant”
`
`cannot itself be a device. Instead, a “participant” must be a “user” of a device.
`
`Fourth, the ’970 Patent describes a goal of the claimed invention as enabling coordination
`
`between different people, i.e., “users.” As the Field of the Invention explains, the alleged invention
`
`“uses a plurality of PCs and PDA/cell phones for the coordination of two or more people through
`
`the use of a communications network.” Id. at 1:15-17. The Description of Related Art similarly
`
`states that the alleged invention allows “a user to be able to simultaneously send a message to the
`
`cell phones or PCs of a large group of people,” and then determine “which people received the
`
`message on their cell phone or PC.” Id. at 1:51-53, 1:58-60. The specification adds that providing
`
`
`
`3
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 8 of 16 PageID #: 13971
`
`
`
`“a forced message alert software application program [] allows a participant to send a text or voice
`
`message to a group of people and force an automatic acknowledgment.” Id. at 3:25-27.
`
`The Federal Circuit has held that claims should be construed in a manner that “achieve[s]
`
`the overall object of the invention,” while rejecting constructions “in tension with . . . the objectives
`
`of the [patent] as expressed in the specification.” Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1324
`
`(Fed. Cir. 2008); Asyst Techs., Inc. v. Amtrak, Inc., 402 F.3d 1188, 1194 (Fed. Cir. 2005). Here,
`
`the specification repeatedly describes an object of the claimed invention as addressing situations
`
`where coordination is needed among different “people”—i.e., “users,” not physical objects like
`
`devices. By contrast, the specification never describes the alleged invention as having applicability
`
`to only a single user having multiple devices. AGIS’s proposal to construe “participants” as
`
`“devices” conflicts with a stated objective of the patent and should be rejected.
`
`3.
`
`Dictionaries Support Construing “participants” As “users”
`
`Dictionaries also support that “participants” should be construed as “users,” as they
`
`commonly define “participants” as “persons,” and never as things or objects, as AGIS proposes:
`
`• “a person who takes part in something,” Ex. 9 (New Oxford Am. Dict. (3rd ed. 2010)) at 1277;
`
`• “a person who takes part in or becomes involved in a particular activity,” Ex. 10 (Cambridge
`Dict. of Am. English (2nd ed. 2008)) at 624;
`
`• “a person or group that participates,” Ex. 11 (Random House Webster’s College Dict.
`(Updated ed. 2005)) at 896;
`
`• “a person who takes part in or becomes involved in a particular activity,” Ex. 12 (Cambridge
`Advanced Learner’s Dict. (2003)) at 904.
`
`
`
`Although dictionaries are generally given less weight than intrinsic evidence, dictionaries
`
`can be given more weight where, as here, the term has a “widely accepted meaning,” and
`
`dictionaries may “assist in understanding the commonly understood meaning of words.” Phillips,
`
`
`
`4
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 9 of 16 PageID #: 13972
`
`
`
`415 F.3d at 1314, 1322. The widely accepted, commonly understood meaning of “participant” as
`
`being a “person” provides another basis to construe it as “users,” not “devices.”
`
`4.
`
`AGIS’s Arguments Are Meritless And Belied By Its Prior Positions
`
`AGIS’s primary argument is that “‘participant’ should be construed according to its plain
`
`and ordinary meaning” and that there is “no lexicography or disavowal” that limits “participants”
`
`to another meaning. AGIS Br. at 6, 7. But AGIS’s argument relies on the false, unexplained
`
`assumption that the plain meaning of “participants” includes “devices” (i.e., physical objects). As
`
`discussed, the claim language, specification, and dictionary evidence all refute AGIS’s assumption
`
`and instead support that the term’s plain meaning—in both the context of the ’970 Patent and
`
`ordinary English—refers to “users” of devices, not devices themselves. Because the plain meaning
`
`of “participants” does not include “devices,” lexicography and disavowal are not required to
`
`exclude “devices” from the term’s scope. See Thorner v. Sony Computer Ent’t Am. LLC, 669 F.3d
`
`1362, 1369 (Fed. Cir. 2012) (“The words of a claim are generally given their ordinary and
`
`customary meaning . . . [t]here are only two exceptions to this general rule: 1) when a patentee sets
`
`out a definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope
`
`of a claim term.”). And even if lexicography were needed to construe “participants” as “users,”
`
`such lexicography exists here. As discussed, the specification defines “participants” as “users,”
`
`both (1) expressly with its statement, “[t]he users are the network participants,” Ex. A at 3:56-57,
`
`and (2) through its interchangeable use of the two words. Id. at 5:45-47, 5:54-57.
`
`AGIS also identifies at least two places in the ’970 Patent where “participant” refers to a
`
`“user”: when the specification uses the phrases “participant user” or “participants users.” AGIS
`
`Br. at 8; Ex. A at 5:26-27, 6:22-25. AGIS, however, argues that in all other instances where
`
`“participant” appears in the patent, it could mean “device.” AGIS Br. at 8. AGIS provides no
`
`explanation for its position. For example, AGIS identifies no place in the ’970 Patent where
`
`
`
`5
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 10 of 16 PageID #:
`13973
`
`
`
`“participant” must mean “device” for a claim or specification passage to make sense. By contrast,
`
`as discussed above, there are many places in the ’970 Patent—including Claim 2 and several
`
`specification passages (e.g., 5:26-27, 6:13-16)—where “participants” is used to refer to possessors
`
`or users of “devices,” and thus “participants” could only mean “users.”
`
`AGIS’s remaining two arguments are irrelevant. First, AGIS selectively quotes from the
`
`Markman order in AGIS Software Dev. LLC v. Google LLC, where, in construing unrelated claim
`
`terms, the Court found that the words “sender” and “recipient” referred to “devices,” not “people.”
`
`AGIS Br. at 6; Ex. G at 30. But this Court’s finding rested on the disputed claim language—
`
`“sender PDA/cell phone” and “recipient PDA/cell phone”—using “sender” and “recipient” as
`
`modifiers for “PDA/cell phone” (i.e., device) and to refer to the “role” of each device as either a
`
`sender or recipient “in the context of a particular communication.” Ex. G at 30. Here, by contrast,
`
`Claim 2 does not recite a “participant PDA/cell phone” or use “participant” as a modifier for
`
`“PDA/cell phone.” Rather, the claim recites that each “participant has a similarly equipped
`
`PDA/cell phone,” meaning a “participant” cannot be a “PDA/cell phone” or device.
`
`Second, AGIS’s explanation about how the construction of “participants” could affect its
`
`infringement position for Find My Device is irrelevant to how the term should be construed. AGIS
`
`Br. at 6-7; see NeoMagic Corp. v. Trident Microsystems, Inc., 287 F.3d 1062, 1074 (Fed. Cir.
`
`2002) (“It is well settled that claims may not be construed by reference to the accused device.”);
`
`CyWee Grp. Ltd. v. Samsung Elecs. Co., No. 2:17-CV-140–RWS–RSP, 2018 WL 574871, at *3
`
`(E.D. Tex. Jan. 26, 2018) (“accused products are generally irrelevant to claim construction”).
`
`Finally, AGIS’s positions are undermined by its prior statements. In the AGIS v. Huawei
`
`et al. cases where AGIS asserted the ’970 Patent in this Court, AGIS’s Markman brief equated
`
`“participants” with “users . . . of mobile devices,” by stating that the patents’ alleged invention
`
`
`
`6
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 11 of 16 PageID #:
`13974
`
`
`
`establishes “a communication network for designated users (also called ‘participants’) of mobile
`
`devices, such as cellular telephones/PDAs.” Ex. 13 at 2. And in another of AGIS’s litigations
`
`against Samsung, AGIS’s expert testified that he understood “participants” in the context of
`
`AGIS’s patents to mean “users.” Ex. 14 at 88:25-89:4. Based on AGIS’s prior positions and the
`
`intrinsic and extrinsic evidence, “participants” should be construed to mean “users.”
`
`B.
`
`“group” (’838 Patent - Claims 1, 19, and 54; ’829 Patent - Claims 1, 34, 35;
`’123 Patent - Claims 1, 14, 17, 23, 36)
`
`Plaintiff’s Proposal
`Agree to construe “group” as: “more than two
`participants associated together”; clarify that
`“participants” within the “group” construction
`are “users” or “devices”
`
`Defendants’ Proposal
`Agree to construe “group” as: “more than two
`participants associated together”; clarify that
`“participants” within the “group” construction
`means “users”
`
`
`
`Defendants’ construction of “participants” as “users” within the agreed construction of
`
`“group” is correct for the same reasons discussed for “participants” in the ’970 Patent. The
`
`common specification of the ’838, ’829, and ’123 Patents includes many of the same passages
`
`cited for the ’970 Patent, including passages using “participants” and “users” interchangeably:
`
`• “In order to initiate a telephone call to the cellular phone user (communication net
`participant) represented by symbol (triangle) 30 at a specific latitude and longitude display
`on chart . . . .” Dkt. 87-3 (’838 Patent) at 7:1-4;
`
`• “A second cellular phone user (communication net participant) is represented by symbol 34
`which is a small square (but could be any shape or icon) . . . .” Id. at 7:10-12.
`
`
`
`The specification’s consistent, equivalent, and interchangeable use of “participants” and
`
`“users” defines “participants” to mean “users.” See e.g., Baran, 616 F.3d at 1316.
`
`The construction of “participants” as “users” also follows from an object of the ’838, ’829,
`
`and ’123 Patents’ alleged invention. Like the ’970 Patent, the ’838, ’829, and ’123 Patents are
`
`directed to coordination of different “people” or “individuals,” i.e., “users,” along with a more
`
`specific goal of forming “groups” of such users. The Field of Invention describes this goal as
`
`
`
`7
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 12 of 16 PageID #:
`13975
`
`
`
`“allow[ing] a group of people to be able to set up a network easily and rapidly, especially in an
`
`emergency situation” and “[t]he invention . . . allow[s] a group of people to be able to set up a
`
`network.” Dkt. 87-3 at 1:46-48, 1:44-48. The Summary of the Invention similarly explains that:
`
`“It is an object of this invention to enable each participant in the communication network to join
`
`other ad hoc network participants to form an ad hoc digital and voice network with other cell
`
`phone users rapidly for coordinating member activities.” Id. at 4:29-33. As discussed, the Federal
`
`Circuit has repeatedly held that claims should be construed in a manner that “achieve[s] the overall
`
`object of the invention.” Praxair, 543 F.3d at 1324. Here, an object of the patents is allowing
`
`different “users” to form a “group”—not allowing different “devices” belonging to the same single
`
`person to form a “group,” as AGIS’s proposal contemplates.
`
`In addition to the common specification, as discussed with the ’970 Patent above, (1)
`
`dictionary definitions of “participants” as “persons” and (2) AGIS’s prior admissions that
`
`“participants” means “users,” all further confirm that “participants” means “users,” not “devices.”
`
`AGIS’s only intrinsic record argument for construing “participants” as “devices” is that
`
`some claims recite “devices included in the group,” implying that a “group” comprises “devices.”
`
`AGIS Br. at 3-4. But the claims recite “devices” in a “group” only because the group’s participant
`
`users each possess a device, such that a “group” comprises users along with their devices. Indeed,
`
`the specification is replete with references to how participants “use” or “have” devices:
`
`• “[A] communication network of participants using handheld cell phones having integrated
`PDA and GPS circuitry with ACS application programs that allow a participant having an
`ACS equipped cell phone . . . .” Id. at 4:66-5:3;
`
`• “These symbols 30 and 34 can represent communication net participants having cellular
`phones in the displayed geographical area that are part of the overall cellular phone
`communications net, each participant having the same device 10 used.” Id. at 6:54-58;
`
`• “A user can manually poll any or all other cell phone devices that are used by all of the
`participants in the communication network having the same devices.” Id. at 9:46-49;
`
`
`
`8
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 13 of 16 PageID #:
`13976
`
`
`
`
`• “[P]articipants have either PDA cell phones or PDAs without cellular.” Id. at 14:13-14;
`
`• “Thus, using the present invention, each participant can touch and point to call to one or more
`other net participants symbolically displayed on the map, each of whom has a device as shown
`in FIG. 1. . . .” Id. at 7:35-40.
`
`
`
`These passages support that each participant has or uses a device—not that the participant
`
`is the device. It would be illogical for “participant” to also mean a “device,” because a “device”
`
`cannot possess another “device.” Instead, for the passages to make sense, “participant” must mean
`
`“user.” AGIS identifies no instance in the patents where a “participant” must include a “device”
`
`for the claim or passage to make sense. So while users have devices and such users with their
`
`devices may be included in a “group,” the point remains that the group’s “participants” are users.
`
`AGIS’s two other arguments are irrelevant. First, as with the ’970 Patent, AGIS’s
`
`statements about how the construction of “participants” could affect its infringement position is
`
`irrelevant to the Markman process. AGIS Br. at 4-5; e.g., NeoMagic, 287 F.3d at 1074. Second,
`
`AGIS purports to quote contentions that another party, Apple, made in the AGIS v. Huawei case
`
`about how “a group call requires more than two participants” and “devices can ‘broadcast to a
`
`group.’” AGIS Br. at 4. But the text that AGIS purports to quote from Apple does not appear in
`
`the document cited by AGIS, which is the Court’s Markman order. 2018 WL 4908169 (E.D. Tex.
`
`Oct. 10, 2018). Nor does the alleged text quoted in AGIS’s brief suggest that Apple believed
`
`“participants” meant “devices.” More importantly and contrary to AGIS’s mischaracterization,
`
`nothing in this Court’s prior Markman order addressed the meaning of “participants”—which itself
`
`is not a term that appears in any claims of the ’838, ’829, and ’123 Patents—or otherwise suggested
`
`that “participants” could mean devices. Id. at *23-25.
`
`Accordingly, “participants” should be construed as “users” and exclude “devices” across
`
`the patents asserted in this case.
`
`
`
`9
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 14 of 16 PageID #:
`13977
`
`
`
`
`
`Dated: October 4, 2023
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`/s/ Melissa R. Smith
`Melissa R. Smith
`Texas State Bar No. 24001351
`melissa@gillamsmithlaw.com
`GILLAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Phone: (903) 934-8450
`Fax: (903) 934-9257
`
`Gregory Blake Thompson
`Texas State Bar No. 24042033
`MANN | TINDEL | THOMPSON
`112 E. Line Street, Suite 304
`Tyler, Texas 75702
`(903) 657-8540
`(903) 657-6003 (fax)
`
`Neil P. Sirota
`neil.sirota@bakerbotts.com
`Margaret M. Welsh
`margaret.welsh@bakerbotts.com
`BAKER BOTTS L.L.P.
`30 Rockefeller Plaza
`New York, NY 10112-4498
`Phone: (212) 408-2500
`Fax: (212) 408-2501
`
`Darin W. Snyder (pro hac vice)
`dsnyder@omm.com
`Mark Liang (pro hac vice)
`mliang@omm.com
`Bill Trac
`btrac@omm.com
`Sorin Zaharia
`szaharia@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8700
`
`10
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 15 of 16 PageID #:
`13978
`
`
`
`
`
`
`
`Facsimile: (415) 984-8701
`
`Stacy Yae (pro hac vice)
`syae@omm.com
`O’MELVENY & MYERS LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
`Telephone: (213) 430-6000
`Facsimile: (213) 430-6407
`
`Grant Gibson
`Texas State Bar No. 24117859
`ggibson@omm.com
`O’MELVENY & MYERS LLP
`2501 North Harwood Street, Suite 1700
`Dallas, TX 75201-1663
`Telephone: (972) 360-1900
`Facsimile: (972) 360-1901
`
`ATTORNEYS FOR DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.
`
`
`
`11
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 139 Filed 10/04/23 Page 16 of 16 PageID #:
`13979
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing document was filed electronically in
`
`compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
`
`have consented to electronic service on October 4, 2020.
`
`
`
`
`
`
`
`
`
`
` /s/ Melissa R. Smith
`
`
`
`
`12
`
`