Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 1 of 9 PageID #: 14786
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT TEXAS
`MARSHALL DIVISION
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`Plaintiff,
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`v.
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
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` Civil Action No. 2:22-cv-00263-JRG-RSP
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` JURY TRIAL DEMANDED
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`Defendants.
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`DEFENDANTS’ OBJECTIONS PURSUANT TO RULE 72(A) OF THE MAGISTRATE
`JUDGE’S CLAIM CONSTRUCTION OPINION AND ORDER (DKT. 156)
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 2 of 9 PageID #: 14787
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`Pursuant to Fed. R. Civ. P. Rule 72(a), Defendants respectfully object to the Magistrate
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`Judge’s Claim Construction Order (Dkt. 156, “Order”) with respect to the terms addressed below.
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`A.
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`“status data” (’970 Patent - Claim 10)
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`The term “status data” is indefinite because the intrinsic record fails to place any boundaries
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`on what the term means. The only limitation provided by the claim language is that “status data”
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`is “associated with a recipient PDA/cell phone.” But simply being associated with a device fails
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`to provide reasonable certainty as to what data is included or excluded in the term. See, e.g., Infinity
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`Computer Prod., Inc. v. Oki Data Americas, Inc., 987 F.3d 1053, 1060 (Fed. Cir. 2021).
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`The specification fails to resolve this uncertainty as it mentions “status data” only twice in
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`passing. First, the specification at col. 4 lines 14-18 refers to “telephone,” “GPS,” and “other”
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`data as being “status data,” but it fails to identify the bounds on the “other data” that comprise
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`“status data.” And while “telephone” and “GPS” are offered as examples, such “open-ended”
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`examples suggesting that a term “might or might not possess certain traits” “cannot provide
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`reasonably certain bounds on the scope” of the term. IQASR LLC v. Wendt Corp., 825 F. App’x
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`900, 906 (Fed. Cir. 2020). Second, Figure 1B calls out “identity” and “location” data as being
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`different from “status data” but provides no other guidance on what is excluded from “status data.”
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`The specification not only fails to clarify the bounds of “status data,” it actually adds to the
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`confusion by providing a conflicting description of “status data” as information regarding actions
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`taken by the user of the “recipient PDA/cellphone” (e.g., whether the user has manually responded
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`to a particular message). Dkt. 97 at 1-2. But attributing “status data” to information associated
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`with a “user” contravenes the claim language, which recites that “status data” is associated with a
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`device. It is unclear, for example, whether “status data” could include battery level, which is
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`information associated with a device but not a user. Thus, “status data” is indefinite as it can mean
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`several different things and there is no “informed and confident choice available among the
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`1
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 3 of 9 PageID #: 14788
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`contending definitions.” Media Rights Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1371
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`(Fed. Cir. 2015); see also TvnGO Ltd. (BVI) v. LG Elecs. Inc., 861 F. App’x 453, 459 (Fed. Cir.
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`2021) (finding indefiniteness when patent suggested “two different results” with no “reasonable
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`certainty as to which reading is correct”).
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`The prosecution history further confirms the ambiguity as it relies on a specification
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`passage that describes “status data” as being “of interest to all the network participants.” Dkt. 97
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`at 5. Whether or not data is “of interest” is an inherently subjective assessment that depends on a
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`person’s opinion, which provides no reasonable certainty as to the meaning of the term. Dow
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`Chem. Co. v. Nova Chemicals Corp. (Canada), 803 F.3d 620, 635 (Fed. Cir. 2015).
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`B.
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`“means for presenting a recipient symbol on the geographical map
`corresponding to a correct geographical location of the recipient PDA/cell
`phone” (’970 Patent - Claim 2)1
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`This means-plus-function term is indefinite because the specification fails to disclose any
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`supporting algorithm. The Order incorrectly finds an algorithm tied to the claimed function at col.
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`5 lines 37-44, col. 6 lines 25-27, and col. 6 lines 33-37. Dkt. 156 at 17. But the cited passages
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`simply restate the function of determining the “correct geographical location” and state that an
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`undefined “mathematical correlation algorithm” relates a device’s latitude and longitude to its
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`screen position. ’970 Patent at 5:37-44, 6:25-37. While the specification acknowledges that an
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`algorithm is needed, it gives no detail about what the algorithm is. The specification thus falls far
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`short of disclosing any sequence of steps needed to achieve the claimed function as required under
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`§ 112, ¶ 2, and instead, simply refers to the “algorithm” as a black box, which is improper under
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`1 The Order incorrectly states that “Defendant had no objection to proceeding with claim
`construction as to this term.” Dkt. 156 at 14. At the Markman hearing, Defendants agreed to argue
`the term because it is relevant to Defendants’ inequitable conduct defense. However, as
`Defendants also stated, a construction of the term is not required because the term appears only in
`’970 Patent, Claim 2, which is no longer asserted by AGIS. See Dkt. 154 at 5, 49.
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`2
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 4 of 9 PageID #: 14789
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`Federal Circuit precedent. E.g., Ergo Licensing, LLC v. CareFusion 303, Inc., 673 F.3d 1361,
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`1365 (Fed. Cir. 2012); Augme Techs., Inc. v. Yahoo! Inc., 755 F.3d 1326, 1338 (Fed. Cir. 2014).
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`The Order also errs by not giving proper consideration to the Federal Circuit’s holding in
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`Advanced Ground Info. Sys., Inc. v. Life360, Inc., 830 F.3d 1341 (Fed. Cir. 2016), which found
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`the analogous means-plus-function term “symbol generator” in a related patent to be indefinite
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`because that patent likewise failed to disclose an algorithm. In particular, the Life360 court found
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`that the disclosure of “software that coordinates the x and y coordinates on the LCD display screen”
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`is fundamentally inadequate as an algorithm under § 112, ¶ 6. Advanced Ground Info. Sys., Inc.
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`v. Life360, Inc., No. 14-80651-CV, 2014 WL 12652322, at *5 (S.D. Fla. Nov. 21, 2014). Likewise,
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`here, the “means for presenting” term is indefinite because the similar specification disclosure
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`cited by the Order—“software [that] has an algorithm that relates the x and y coordinates to latitude
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`and longitude”—is not an algorithm at all. The Order also distinguishes the “symbol generator”
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`function as “generating” symbols but ignores that the “generating” function—i.e., “generat[ing]
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`symbols representing each user in the network on the display”—is equivalent to “presenting”
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`symbols, as recited by the term at issue here. Dkt. 156 at 18; Life360, 830 F.3d at 1345.
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`C.
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`“which triggers the forced message alert software application program to
`take control of the recipient PDA/cell phone” (’970 Patent - Claim 10)
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`This term should be construed as “activates [the forced message alert software application
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`program] to lock the display of the recipient PDA/cell phone until a response is selected from the
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`response list.” The parties dispute the meaning of the phrases “which triggers” and “take control,”
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`which the Court has a “duty to resolve.” 2 O2 Micro Int’l, Ltd. v. Beyond Innovation Technology
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`Co., 521 F.3d 1351 (Fed. Cir. 2008). But the Court’s finding that the term has its “plain meaning”
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`2 In a prior proceeding, AGIS agreed that the “plain and ordinary meaning of ‘take control’ is
`‘lock.’” Complainants’ Op. Claim Construction Br., EDIS 794911, 37-TA-1347 at 24.
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`3
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 5 of 9 PageID #: 14790
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`fails to clarify what “triggers” and “take control” mean. Defendants’ proposed construction
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`resolves this dispute and is supported by the specification. For example, the specification discusses
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`a forced software application program that effectively takes control of the phone, including the
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`display, such that the display is controlled until a manual response is selected from the list (i.e. the
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`display is “locked” until a manual response is selected). ’970 Patent at 8:37-57. Defendants’
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`proposal does not mean that the display cannot be used at all, as the Order suggests (Dkt. 156 at
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`22); rather, the display is locked and not usable until it receives a manual response.
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`The Order incorrectly finds that because surrounding claim language already recites
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`“transmitting a selected required response from the response list in order to allow the messages
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`required response list to be cleared from the recipient’s cell phone display,” that Defendants’
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`construction to include “until a response is selected from the response list” is redundant. Dkt. 156
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`at 21. But the “transmitting a selected required response” language is absent and unclear in the
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`claimed step in which the term at issue appears.
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`D.
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`“group” (’838 Patent - Claims 1, 19, and 54; ’829 Patent - Claims 1, 34, 35;
`’123 Patent - Claims 1, 14, 17, 23, 36)
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`The word “participants” within the agreed construction of the term “group”—i.e., “more
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`than two participants associated together”—should be construed to mean “users” and cannot
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`include “devices” separate and apart from users. The Order incorrectly finds that “participants”
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`can encompass “devices” separate and apart from users because some claims recite “one or more
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`respective second devices included in the group.” E.g., ’838 Patent at Cl. 1; Dkt. 156 at 27. But
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`the cited claim language states only that “devices” are in the “group,” not that a “group” can be
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`defined merely by including “devices.” To the contrary, the claims recite “devices” in a “group”
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`only because the group’s participant users each possess or use a device. Indeed, the specification
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`is replete with references to participants “us[ing]” or “hav[ing]” devices. E.g., ’838 Patent at 4:66-
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`4
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 6 of 9 PageID #: 14791
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`5:3, 6:54-58, 9:46-49, 14:13-14, 7:35-40. The Order also ignores the specification’s consistent,
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`equivalent, and interchangeable use of “participants” and “users,” which effectively defines
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`“participants” to mean “users.” See Baran v. Medical Device Techs., Inc., 616 F.3d 1309, 1316
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`(Fed. Cir. 2010); see, e.g., ’838 Patent at 7:1-4, 7:10-12. Thus, a “group” is defined by having
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`more than two “users” of devices, not by having more than two devices.
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`The Order incorrectly states that “a single ‘user’ could have multiple ‘devices.’” Dkt. 156
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`at 27. But that is an illogical outcome in the context of the ’838, ’829, and ’123 Patents, which are
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`directed at coordination among multiple people—i.e., “form[ing] an ad hoc digital and voice
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`network with other cell phone users rapidly for coordinating member activities.” ’838 Patent at
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`4:29-33 (emphasis added). The specification is devoid of any embodiment that involves a single
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`user or no users, and neither AGIS nor the Order identifies otherwise.
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`The Order also incorrectly states that Defendants’ construction introduces a “negative
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`limitation that would preclude a ‘group’ from being made up of devices.” Dkt. 156 at 29. But
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`Defendants are not excluding “devices” from the “group” because the “users” in Defendants’
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`construction are necessarily users of “devices.” Thus, the “group” includes more than two “users,”
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`along with each user’s device(s). What Defendants are properly excluding, consistent with the
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`intrinsic evidence, is the nonsensical scenario of a group with multiple devices that are being used
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`by only one user or no users at all. To clarify that their proposal is not excluding “devices,” during
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`the Markman hearing, Defendants offered a compromise proposal to construe “participants” as
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`“users with their devices.” Dkt. 154 at 12:9-15. Defendants reiterate that this proposed
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`construction is fully supported by the intrinsic evidence and should be adopted by the Court.
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`II.
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`CONCLUSION
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`For the reasons stated above and in Defendants’ Markman briefing and oral arguments
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`regarding the above-listed terms, Defendants object to the constructions discussed above.
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`5
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 7 of 9 PageID #: 14792
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`Dated: December 11, 2023
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`Respectfully submitted,
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`/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
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 8 of 9 PageID #: 14793
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`Facsimile: (415) 984-8701
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`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
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`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
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`ATTORNEYS FOR DEFENDANTS
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.
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`Case 2:22-cv-00263-JRG-RSP Document 160 Filed 12/11/23 Page 9 of 9 PageID #: 14794
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
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`have consented to electronic service on December 11, 2023.
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` /s/ Melissa R. Smith
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`8
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