Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 1 of 14 PageID #: 33145
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`AX Wireless LLC,
`
`
`Civil Action No. 2:22-cv-277-RWS-RSP
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`Plaintiff,
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`JURY TRIAL DEMANDED
`
`
`
`v.
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`DELL INC., and DELL TECHNOLOGIES
`INC.
`
`
`Defendants.
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`AX WIRELESS LLC,
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`
`
`v.
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`HP Inc.
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`
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`Plaintiff,
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`Defendant.
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`AX WIRELESS LLC,
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`Plaintiff,
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`
`
`v.
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`LENOVO GROUP LIMITED,
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`
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`Defendant.
`
`
`
`
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`Civil Action No. 2:22-cv-279-JRG-RSP
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`JURY TRIAL DEMANDED
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`
`
`Civil Action No. 2:22-cv-280-RWS-RSP
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`JURY TRIAL DEMANDED
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`PLAINTIFF’S REPLY CLAIM CONSTRUCTION BRIEF
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 2 of 14 PageID #: 33146
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`Defendants’ Responsive Claim Construction Brief (ECF No. 127, “Responsive Brief”) in-
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`vites the Court to ignore the patents’ specification and rigidly rely instead on a definition from a
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`standard attached to the patents’ provisional application. In urging an overly narrow construction
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`of “OFDM symbol,” Defendants ignore statements in the specification describing exactly what the
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`term should encompass and instead import limitations from an exemplary embodiment. Defend-
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`ants’ alleged “intrinsic definition” is not lexicography under well-settled claim construction law,
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`and Defendants ignore its place relative to the complete intrinsic record.
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`Defendants also baselessly identify the wireless receiver’s capabilities in the ’146 patent’s
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`claim 1 as a method step that supposedly causes confusion about when infringement occurs. But
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`there is no confusion—a device infringes if it has the recited capabilities.
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`The Court should reject Defendants’ proposed constructions and adopt AXW’s for the rea-
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`sons outlined in AXW’s Opening Claim Construction Brief (ECF No. 121 (“Opening Brief”)).
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`I.
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`“OFDM SYMBOL”
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`AX Wireless Proposed Construction
`A fixed time unit of an OFDM signal carrying
`one or more bits of data.
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`Defendants Proposed Construction
`The smallest unit of data transmission on a me-
`dium consisting of multiple subcarriers, each
`modulated by a certain number of data bits and
`transmitted during a fixed time called a symbol
`period.
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`Alternatively:
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`A fixed time-unit of an OFDM signal carrying
`one or more bits of data and consisting of mul-
`tiple sub-carriers, each modulated by a certain
`number of data bits and transmitted during the
`fixed time called a symbol period.
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`
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`Defendants ignore the mountain of intrinsic and extrinsic evidence showing that an OFDM
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`symbol is a fixed time unit of an OFDM signal carrying one or more bits of data, as AXW proposes.
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`See Opening Brief at 4–12. Instead, Defendants resort to extrinsic evidence to try to rewrite the
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`1
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 3 of 14 PageID #: 33147
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`claims with both their primary construction and a newly minted alternative construction that they
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`served for the first time with their Responsive Brief (in red above). In both proposals, Defendants
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`add a requirement—“consisting of multiple sub-carriers, each modulated by a certain number of
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`data bits and transmitted during the fixed time called a symbol period”—that unduly narrows the
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`term. For this, Defendants point to only two things: an industry recommendation attached to the
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`provisional application and a misreading of a statement in the patents’ background. See Responsive
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`Brief at 6 (citing ECF No. 127-1 at 28), 9 (citing ’262 patent at 1:28–42). Neither supports con-
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`struing “OFDM symbol” as narrowly as Defendants urge. The rest of Defendants’ arguments—
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`that AXW misrepresented the claim language and that Defendants’ construction reflects the plain
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`language of the term—are equally unavailing.
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`A.
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`Defendants’ Explanation Of “Symbol” Is Unnecessary And Wrong
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`Defendants’ primary construction proposes replacing the words “a fixed time unit of an
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`OFDM signal” in AXW’s construction with the mouthful “the smallest unit of data transmission
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`on a medium consisting of multiple subcarriers.” Responsive Brief at 6. That construction divorces
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`the term from its context in the patents, which is improper. See Opening Brief at 8. Defendants
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`respond that “Plaintiff does not and cannot dispute that a symbol in an OFDM system, like a sym-
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`bol in any digital communication system, is in fact the smallest unit in which data is transmitted
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`on the physical medium.” Responsive Brief at 7. Wrong. Defendants improperly ignore prior-art
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`standards referenced in the specification. For example, the 1999 802.11a standard, which defines
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`the “OFDM PHY specification for the 5 GHz band” for 802.11 networks, includes OFDM “short
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`training symbols” and OFDM “long training symbols” in an “OFDM training structure”; both
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`types of symbols are OFDM-modulated but with different symbol times (0.8µs vs. 3.2µs). Ex. 10
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`(IEEE Std 802.11a-1999) at 3, 12-13 (also referring to “the resulting OFDM symbol”). So there is
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`no single fixed “smallest unit of data transmission” on the medium and no basis to limit the claims
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`2
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 4 of 14 PageID #: 33148
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`as Defendants’ propose. Moreover, Defendants’ extrinsic definition apparently comes from the
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`IEEE 802.3-1998 standard, see ECF No. 127-2 at 4, which is limited to wired ethernet networks
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`(such as the referenced 10BASE-T) and not wireless standards. Implicitly recognizing this lack of
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`support, Defendants have added a new alternative construction that avoids this extrinsic definition.
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`Because there is no need to define what a “symbol” is, and certainly not in the unsupported, narrow
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`way Defendants propose, the Court should similarly reject it.
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`B.
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`The Issued Specification Does Not Support Defendants’ Construction
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`The second sentence of Defendants’ construction, common to both alternatives, is likewise
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`unsupported. Defendants identify only a single statement in the actual, issued specification:
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`These systems use OFDM transmission, which is also sometimes
`referred to as Discrete Multi-Tone (DMT) which divides the trans-
`mission frequency band into multiple subcarriers (also referred to as
`tones or sub-channels), with each sub-carrier individually modu-
`lating a bit or a collection of bits.
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`Responsive Brief at 9 (emphasis in original). Defendants conclude that “[t]hat is precisely what
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`the second sentence of the intrinsic definition of ‘OFDM symbol’ provides.” Id. Again, Defendants
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`are wrong. Their construction requires that each subcarrier be “modulated by a certain number of
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`data bits,” not just “bits” as in the specification. That distinction is critical: OFDM systems can
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`use symbols with different types of subcarriers, not all of which modulate data bits. ITU G.9960—
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`which is incorporated by reference into the specification—explains that some subcarriers may
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`carry non-data bits. See, e.g., Ex. 8 (ITU-T Draft Recommendation G.9960, January 2009) at
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`57:1546–48 (“Supported sub-carriers (SSC) that are not loaded with payload [i.e., data]1 bits or
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`that are partially loaded with payload bits shall be loaded with a pseudo-random sequence defined
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`by the Linear Feedback Shift Register (LFSR) generator.”2). Indeed, it describes three types of
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`1 See Ex. 1 at 1:33–34 (“A packet is usually formed by a preamble, header, and payload.”)
`2 All emphasis added unless otherwise indicated.
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`3
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 5 of 14 PageID #: 33149
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`subcarriers, only one of which is modulated with data bits: “[m]asked sub-carriers . . . on which
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`transmission is not allowed,” “active sub-carriers . . . that have loaded bits . . . for data transmis-
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`sion,” and “inactive sub-carriers . . . that don’t have any data bits loaded.” Id. at 54:1447–55:1467.
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`Legacy IEEE 802.11 standards, which the specification explicitly references at 1:35–37, similarly
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`describe three types of subcarriers: (1) data subcarriers, (2) pilot subcarriers, and (3) unused sub-
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`carriers:
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`Divide the complex number string into groups of 48 complex num-
`bers. Each such group will be associated with one OFDM symbol.
`In each group, the complex numbers will be numbered 0 to 47 and
`mapped hereafter into OFDM subcarriers numbers -26 to -22, -20 to
`-8, -6 to -1, 1 to 6, 8 to 20, and 22 to 26. The subcarriers -27, -7, 7,
`and 21 are skipped and, subsequently, used for inserting pilot sub-
`carriers. The “0” subcarrier, associated with center frequency, is
`omitted and filled with zero value.
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`Ex. 10 (IEEE Std 802.11a-1999) at 8; see also Ex. 11 (IEEE Std 802.11n-2009) at 247 (describing
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`HT PHY data subcarriers), 297 (describing pilot subcarriers). As in G.9960, the pilot subcarriers
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`in 802.11a-1999 carry non-data bits using a predefined bit sequence. See, e.g., Ex. 10 at 22–23. A
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`person of ordinary skill in the art would have known about these subcarrier types when reading
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`the specification and understood that not all OFDM symbols are modulated with data bits. De-
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`fendants’ attempt to smuggle modulating “data bits” into their construction is thus improper.
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`Defendants’ objection to AXW’s reliance on preexisting 802.11 standards to interpret the
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`claims is baseless. See Responsive Brief at 11–12. Contrary to Defendants’ suggestion, AXW did
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`not point to the accused instrumentalities to interpret the claims. As explained above, the patents
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`explicitly identify prior-art 802.11 standards as examples of OFDM systems the invention is di-
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`rected to, and they do so immediately before the passage Defendants insist confirms their con-
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`struction. See Ex. 1 (’262 patent) at 1:28–42. So AXW referred to the version of the 802.11 stand-
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`ard that published in 1999—a full decade before the patents’ earliest priority date. In other words,
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`4
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 6 of 14 PageID #: 33150
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`AXW pointed to the specification and the prior art, both of which are proper ways to understand
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`how a skilled artisan would read the claims. See, e.g., Sequoia Tech., LLC v. Dell, Inc., 66 F.4th
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`1317, 1328 (Fed. Cir. 2023) (“We have held that when a patentee cites prior art, it may have par-
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`ticular value as a guide to the proper construction of the term, because it may indicate that the
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`patentee intended to adopt that meaning.” (cleaned up)) (citation omitted); Phillips v. AWH Corp.,
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`415 F.3d 1303, 1315 (Fed. Cir. 2005) (“[T]he specification . . . is the single best guide to the
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`meaning of a disputed term”) (citation omitted).
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`In accusing AXW of using hindsight, Defendants betray their true intentions: to urge an
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`overly narrow construction of “OFDM symbol” that would exclude the Wi-Fi standards, including
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`the one at issue. Defendants’ approach would essentially ignore the express reference to 802.11 in
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`the specification, and the Court should reject it.
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`C.
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`The July 2009 G.hn Standard Is Attached To The Provisional Application And
`Is Not The Provisional Application
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`Defendants argue that the “patentee provided an express definition.” Responsive Brief at 6.
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`The patentee did no such thing. Defendants’ clumsily try to elevate ITU G.9960 (which Defendants
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`refer to as the “July 2009 G.hn Standard”) attached to the provisional application as the provisional
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`application itself. But the G.hn Standard is attached to the provisional application as one of four
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`references referred to in the Background section. See ECF No. 127-1 at 1 (“The default value of
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`D is 1, but expanding it to 2 in some cases is under discussion [2, 3].”), 5-6 (providing numbered
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`list of references and identifying the July 2009 standard as “3.”). Those attached references follow
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`5 pages of description, including claims. See id. at 1-5. Defendants admit that everything in the
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`provisional application before the attachments “describe[s] what the inventors viewed as their in-
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`vention,” Responsive Brief at 4, which is exactly what a specification is, see 35 U.S.C. § 112 (pre-
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`AIA) (“The specification shall contain a written description of the invention . . . . [and] shall
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 7 of 14 PageID #: 33151
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`conclude with one or more claims particularly pointing out and distinctly claiming the subject
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`matter which the inventor regards as his invention.”).
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` Defendants’ suggestion that the G.hn definition is lexicography is wrong: as Defendants
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`acknowledge, the words are not even the inventors’, and Defendants point to nowhere in the spec-
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`ification or provisional that shows the inventors’ intent to define “OFDM symbol” other than by
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`its plain and ordinary meaning. Responsive Brief at 4; Merck & Co. v. Teva Pharms, USA, Inc.,
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`395 F.3d 1364, 1370 (Fed. Cir. 2005) (“When a patentee acts as his own lexicographer in redefin-
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`ing the meaning of particular claim terms away from their ordinary meaning, he must clearly ex-
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`press that intent in the written description.”). The mere incorporation by reference of ITU G.9960
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`into the issued patents’ specification is not enough for disclaimer or lexicography. See Opening
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`Brief at 10. Defendants’ attempts to distinguish SkinMedica, Inc. v. Histogen Inc. fall flat. 727 F.3d
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`1187, 1207 (Fed. Cir. 2013). There, as here, a party was trying to use a definition in a technical
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`reference (“Doyle”) “‘incorporated by reference’ in its ‘entirety,’ without further relevant citation
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`to specific contents.” Id. at 1193. But the Federal Circuit rejected that approach because the inven-
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`tors “did not indicate their reference to Doyle was for that purpose; nor did they even refer with
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`any detailed particularity” to the relevant passages that allegedly defined the term at issue. Id. at
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`1207. The same result follows here.
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`Defendants’ definition is also incorrect because they try to limit the claims based on one
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`of the many exemplary OFDM transmission standards explicitly referenced in the patents. The
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`specification is clear: G.9960 is, at most, an embodiment. Ex. 1 (’262 patent) at 4:42–44 (identi-
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`fying “MOCA, Homeplug, IEEE 802.11, IEEE 802.3, IEEE 802.16 (WiMAX), and ITU G.9960
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`(G.hn), or the like” as relevant standards). And it would be improper to limit the claims to a G.9960
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`embodiment and exclude 802.11 (and other) embodiments absent disclaimer or lexicography.
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`6
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`D.
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`Defendants’ Remaining Arguments Fail
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`Beyond misunderstanding the specification and relying on overly narrow extrinsic evi-
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`dence, Defendants point to nothing else to meaningfully support their construction.
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`First, Defendants’ claim that AXW misrepresented the claim language does not withstand
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`scrutiny. AXW’s point was that the claims do not “mention [] the number of subcarriers the header
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`bits modulated in the received OFDM symbol.” See Opening Brief at 9. That is an accurate char-
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`acterization of the claims. And in arguing that there is “no conflict” between their construction and
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`the claims, Defendants do not contend otherwise. See Responsive Brief at 9. Defendants are im-
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`porting a limitation the claims do not otherwise require.
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`Second, Defendants fault AXW for misunderstanding their construction. See Responsive
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`Brief at 10. But by requiring that each subcarrier be “modulated by [a] certain number of data
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`bits,” Defendants’ construction seemingly requires that every subcarrier be modulated by “data
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`bits.” That is the straightforward read.3 Yet neither the asserted patents nor the prior art support
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`that requirement because OFDM systems include multiple subcarriers that have no transmitted
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`data bits. Supra at I.B. Perhaps recognizing their overreach, Defendants apparently concede that
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`there would be circumstances in which some subcarriers are turned off. See Responsive Brief at 11
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`(citing G.9960). The use of OFDM in G.9960 is indeed similar to 802.11 in that there are some
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`subcarriers turned off, some that carry non-data bits, and some that carry data bits. Supra at I.B;
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`compare, e.g., Ex. 8 (ITU-T Draft Recommendation G.9960, January 2009) at 54:1447–55:1469,
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`57:1545–58:1570, with Ex. 10 (IEEE Std 802.11a-1999) at 19-23. So there is no reason to treat the
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`two standards differently, as Defendants seek to do. As the specification explains, both use OFDM
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`3 Defendants try to reframe AXW’s criticism as “all the OFDM subcarriers to be modulated by
`data bits all the time.” Responsive Brief at 11. But Defendants continue to argue that, even if not
`happening all the time, all subcarriers must be used at some time for data bits. That is unsupported.
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`7
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`symbols.
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`Indeed, the specification itself contemplates subcarriers that are not used for sending data
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`bits. For instance, in the fifth example of Figure 1, the “Header” includes 10 bits in one OFDM
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`symbol, while the “Header Ext” includes 5 bits in another OFDM symbol. See Ex. 1 (’262 patent)
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`at 5:58–6:7. It would be apparent to a person of ordinary skill in the art that a different number of
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`subcarriers are used to send the header bits between the “Header” and “Header Ext” OFDM sym-
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`bols, meaning some subcarriers that were used to send the 10 bits are no longer used to send the 5
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`bits.
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`Nevertheless, if Defendants concede that their construction does not require that all sub-
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`carriers be modulated with data bits during transmission and thus the IEEE standards discussed
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`above fall under the claimed “OFDM symbol,” as the inventors contemplated they would, then
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`there is no dispute.
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`Finally, Defendants suggest that their construction reflects the plain meaning of “OFDM
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`symbol.” Responsive Brief at 12-13. But again, Defendants point only to the July 2009 G.hn Stand-
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`ard for support, which even Defendants have admitted does not require that each subcarrier be
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`modulated by data bits as mandated by Defendants’ construction. Defendants do not and cannot
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`find any other suggestion that, in OFDM systems, each subcarrier must be modulated with data
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`bits during transmission (or otherwise). See id.
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`The Court should reject Defendants’ attempts to inject unwarranted limitations into the
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`claims and construe “OFDM symbol” to mean “a fixed time unit of an OFDM signal carrying one
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`or more bits of data.”
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`8
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 10 of 14 PageID #: 33154
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`II.
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`THE “DISTINGUISHED” LIMITATION
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`AX Wireless Proposed Construction
`Plain and ordinary meaning.
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`Defendants Proposed Construction
`Indefinite.
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`The ’146 patent’s claim 1 does not recite a method step and is not indefinite. The mixed
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`apparatus-method concern does not apply to this claim. That concern is that such mixed claims
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`can “make it unclear whether infringement occurs when one creates an infringing system, or
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`whether infringement occurs when the user actually uses the system in an infringing manner.”
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`MasterMine Software, Inc. v. Microsoft Corp., 874 F.3d 1307, 1313 (Fed. Cir. 2017) (cleaned up)
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`(citation omitted). But claim 1 of the ’146 patent is “simply [an] apparatus claim[] with proper
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`functional language.” Id. Like the claim in MasterMine, claim 1 uses a present-tense active verb—
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`“distinguishes”—“to describe capabilities of” the wireless receiver—i.e., “distinguish[] the second
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`packet format from the first packet format by detecting, from the received wireless packet, the
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`second header field which repeats the first header field.” Id. at 1315; cf. UltimatePointer L.L.C. v.
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`Nintendo Co., 816 F.3d 816, 826 (Fed. Cir. 2016) (upholding claim reciting “a handheld device
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`including: an image sensor, said image sensor generating data” and other similar “generating data”
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`limitations). Claim 1 is nothing like those at issue in IPXL Holdings or Katz, which claimed activ-
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`ities that the user performs. See IPXL Holdings L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1384
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`(Fed. Cir. 2005) (claim covered a “system of claim 2 wherein . . . the user uses the input means
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`to” perform a specific task); In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303,
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`1318 (Fed. Cir. 2011) (claim covered a “system with an ‘interface means for providing automated
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`voice messages . . . to certain said individual callers, wherein said certain of said individual callers
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`digitally enter data.’”). And in Rembrandt Data Technologies, LP v. AOL, LLC, the offending
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`method step was not tied to any part of the claimed apparatus and simply appeared on its own. See
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`641 F.3d 1331, 1339 (Fed. Cir. 2011) (addressing a claim for “[a] data transmitting device for
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`9
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`transmitting signal corresponding to an incoming stream of bits, comprising: . . . transmitting the
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`trellis encoded frames”). Because, here, the recited claim language is tied to the wireless receiver
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`and defines its capabilities, there is no confusion about when infringement occurs.
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`The claim’s use of the term “received wireless packet” does not alter the analysis. The
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`claimed device comprises “a wireless receiver configured to receive a wireless packet,” and the
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`claim outlines the novel configuration, including the capability of distinguishing between two
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`packet formats. Ex. 4 (’146 patent) at cl. 1. “[T]he received wireless packet” is the source of “the
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`second header field which repeats the first header field” from which the wireless receiver “distin-
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`guishes the second packet format from the first packet format.” See id. The claim describes the
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`wireless receiver’s capabilities—there is no “step” that either the device itself or some user must
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`perform for infringement to occur. The dependent claims confirm that the end user need not, as
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`Defendants imply, “operate the device in an environment that includes only packets in the first
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`packet format” (Responsive Brief at 17): dependent claim 3 recites “wherein the wireless receiver
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`determines the received wireless packet as the first packet format when the second header field is
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`not detected from the wireless packet.” Ex. 4 (’146 patent) at cl. 3. In other words, the wireless
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`receiver is capable of distinguishing the first packet format from the second packet format regard-
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`less of what wireless packet it receives; it either detects both header fields or just the first. See id.
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`The Court should reject Defendants’ arguments and construe the “distinguishes” limitation
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`according to its plain and ordinary meaning.
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`III. CONCLUSION
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`AX Wireless respectfully requests that the Court adopt its proposed constructions.
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`10
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 12 of 14 PageID #: 33156
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`Dated: October 6, 2023
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`Respectfully submitted,
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`
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`/s/ Kevin C. Wheeler
`Claire A. Henry (Texas Bar No. 24053063)
`Charles Everingham IV (Texas Bar No. 00787447)
`Garrett C. Parish (Texas Bar No. 24125824)
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, TX 75604
`Telephone: (903) 757-6500
`Facsimile: (903) 757-2323
`clair@wsfirm.com
`ce@wsfirm.com
`gparish@wsfirm.com
`
`Kevin C. Wheeler
`Jacob C. Vannette
`David J. Hlavka
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW, Suite 1000
`Washington DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`kevin.wheeler@lw.com
`jake.vannette@lw.com
`david.hlavka@lw.com
`
`Clement Naples
`LATHAM & WATKINS LLP
`1271 Avenue of the Americas
`New York, NY 10020
`Telephone: (212) 906-1200
`Facsimile: (212) 751-4864
`clement.naples@lw.com
`
`S. Giri Pathmanaban (Texas Bar No. 24074865)
`LATHAM & WATKINS LLP
`300 Colorado Street
`Austin, TX 78701
`Telephone: (737) 910-7300
`Facsimile: (737) 910-7301
`giri.pathmanaban@lw.com
`
`
`
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`11
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`Case 2:22-cv-00279-RWS-RSP Document 81 Filed 10/06/23 Page 13 of 14 PageID #: 33157
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`Bradley A. Hyde
`LATHAM & WATKINS LLP
`650 Town Center Drive, 20th Floor
`Costa Mesa, CA 92626
`Telephone: (714) 540-1230
`Facsimile: (714) 755-8290
`bradley.hyde@lw.com
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`Attorneys for Plaintiff AX Wireless LLC
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`12
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing document was filed electronically in compli-
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`ance with Local Rule CV-5(a). Therefore, this document was served on all counsel who are
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`deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R.
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`Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have con-
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`sented to electronic service were served with a true and correct copy of the foregoing by email on
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`this the 6th day of October 2023.
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`
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`
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`
`
`/s/ Kevin C. Wheeler
`Kevin C. Wheeler
`
`
`
`
`13
`
`