Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 1 of 22
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`Defendant.
`
`
`Case No. 6:22-cv-00077-ADA
`
`JURY TRIAL DEMANDED
`
`
`SPEIR TECHNOLOGIES LTD.,
`
`
`
`
`
`APPLE INC.
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`
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`
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`
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`
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`DEFENDANT’S REPLY CLAIM CONSTRUCTION BRIEF
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 2 of 22
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`TABLE OF CONTENTS
`
`I.
`
`U.S. PATENT NOS. 7,110,779 AND 7,321,777 (THE RANGING PATENTS) .............. 1
`
`A.
`
`“known device latency” (’779 Patent, claim 18; ’777 Patent, claims 1, 12, 20) .... 1
`
`II.
`
`U.S. PATENT NO. 7,765,399 (THE ’399 PATENT) ........................................................ 2
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`“human/machine interface” (claims 1, 2, 3, 4, 5, and 9) ......................................... 2
`
`“distinct” (claim 1, 7, 9) .......................................................................................... 3
`
`“classified” / “unclassified” (claim 1, 7, 9) ............................................................. 7
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`“The mobile PDA computer system according to claim 1” (claim 7) .................. 10
`
`“physically secure enclosure” (claim 9) ............................................................... 12
`
`III.
`
`U.S. PATENT NO. 8,345,780 (THE ’780 PATENT) ...................................................... 13
`
`A.
`
`B.
`
`“short term” / “long term” (claims 1, 9, and 12) ................................................... 13
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`“self interference” (claims 1, 9, and 12) ............................................................... 15
`
`IV.
`
`CONCLUSION ................................................................................................................. 15
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`
`
`
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`i
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`

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`Ex.
`A
`B
`C
`D
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`E
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`F
`G
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`J
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`K
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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 3 of 22
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`TABLE OF EXHIBITS
`
`Abbreviation
`’779 patent
`’777 patent
`’399 patent
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`
`’252 patent
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`
`Black Decl.
`Webster’s
`
`Oxford
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`
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`’780 patent
`Akl Decl.
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`
`
`Description
`U.S. Patent No. 7,110,779
`U.S. Patent No. 7,321,777
`U.S. Patent No. 7,765,399
`September 1, 2009 Office Action (’399 Patent)
`(excerpt) (highlighting added)
`April 28, 2010 Office Action Response and Terminal Disclaimer
`(’399 Patent) (highlighting added)
`U.S. Patent No. 7,779,252
`November 10, 2009 Office Action Response (’399 Patent)
`(highlighting added)
`Declaration of Dr. John Black
`H
`I Webster’s II New College Dictionary definition of “classified”
`(highlighting added) (APL_SPEIR-EXTRINSIC_00000467-70)
`The Oxford American College Dictionary definition of “classified”
`(highlighting added) (APL_SPEIR-EXTRINSIC_00000230-34)
`Speir’s Preliminary Infringement Contentions for ’399 Patent
`(excerpt) (highlighting added)
`U.S. Patent No. 8,345,780
`L
`M Declaration of Dr. Robert Akl
`N
`July 25, 2012 Office Action Response (’780 patent)
`(highlighting added)
`O Merriam-Webster Online Dictionary definition of “short term”
`(highlighting added) (SPEIR-APPLE-00006742-43)
`Dictionary.com definition of “short term”
`(highlighting added) (SPEIR-APPLE-00006750)
`TheFreeDictionary.com definition of “long term”
`(highlighting added) (SPEIR-APPLE-00006764-65)
`R Merriam-Webster Online Dictionary definition of “long term”
`(highlighting added) (SPEIR-APPLE-00006767-68)
`January 11, 2012 Office Action Response (’780 patent) (highlighting
`added)
`Krumbein, Adam. “Understanding the basics of MIMO
`communication Technology.” Southwest Antennas (2016)
`(highlighting added)
`Jatunov, Loran, and Vijay K. Madisetti. “Computationally-efficient
`SNR estimation for bandlimited wideband CDMA systems.” IEEE
`transactions on wireless communications 5.12 (2006) (highlighting
`added)
`
`P
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`Q
`
`S
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`T
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`U
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`ii
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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 4 of 22
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Arlington Indus., Inc. v. Bridgeport Fittings, Inc.,
`345 F.3d 1318 (Fed. Cir. 2003)................................................................................................11
`
`Bell Atl. Network Servs., Inc. v. Covad Commc’ns Grp., Inc.,
`262 F.3d 1258 (Fed. Cir. 2001)..................................................................................................2
`
`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018)................................................................................................13
`
`Bos.Sci. Scimed, Inc. v. Cordis Corp.,
`483 F. Supp. 2d 390 (D. Del. 2007) ...........................................................................................4
`
`Chef Am., Inc. v. Lamb-Weston, Inc.,
`358 F.3d 1371 (Fed. Cir. 2004)................................................................................................12
`
`Datamize, LLC v. Plumtree Software, Inc.,
`417 F.3d 1342 (Fed. Cir. 2005)..................................................................................................9
`
`Halliburton Energy Servs., Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008)............................................................................................9, 10
`
`Helmsderfer v. Bobrick Washroom Equip., Inc.,
`527 F.3d 1379 (Fed. Cir. 2008)................................................................................................11
`
`Homeland Housewares, LLC v. Whirlpool Corp.,
`865 F.3d 1372 (Fed. Cir. 2017)..................................................................................................2
`
`Interval Licensing v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)..............................................................................................8, 9
`
`LizardTech, Inc. v. Earth Res. Mapping, Inc.,
`424 F.3d 1336 (Fed. Cir. 2005)................................................................................................13
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ...................................................................................................................9
`
`Novo Indus., L.P. v. Micro Molds Corp.,
`350 F.3d 1348 (Fed. Cir. 2003)................................................................................................12
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)..................................................................................................1
`
`Ocean Semiconductor LLC v. Huawei Device USA, Inc.,
`No. 4:20-CV-00991-ALM, 2022 WL 389916 (E.D. Tex. Feb. 8, 2022) ...........................11, 12
`
`iii
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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 5 of 22
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..............................................................................................4, 6
`
`Plant Equip., Inc. v. Intrado, Inc.,
`No. 2:09-CV-395-JRG, 2012 WL 1468594 (E.D. Tex. Apr. 27, 2012) ....................................4
`
`In re Power Integrations, Inc.,
`884 F.3d 1370 (Fed. Cir. 2018)................................................................................................12
`
`Profectus Tech. LLC v. Huawei Techs. Co.,
`823 F.3d 1375 (Fed. Cir. 2016)..................................................................................................6
`
`In re Varma,
`816 F.3d 1352 (Fed. Cir. 2016)..................................................................................................5
`
`Vstream Techs., LLC v. PLR Holdings, LLC,
`No. 6:15CV974-JRG-JDL, 2016 WL 6211550 (E.D. Tex. Sept. 27, 2016) ..........................7, 8
`
`WSOU Invs., LLC v. F5 Networks, Inc.,
`No. 2:20-CV-01878-BJR, 2022 WL 268825 (W.D. Wash. Jan. 28, 2022) ...............................8
`
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`
`iv
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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 6 of 22
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`I.
`
`U.S. PATENT NOS. 7,110,779 AND 7,321,777 (THE RANGING PATENTS)
`
`A.
`
`“known device latency” (’779 Patent, claim 18; ’777 Patent, claims 1, 12, 20)
`
`Apple’s Proposed Construction
`“predetermined latency for the given device type of the
`target wireless communication device”
`
`Speir’s Proposed Construction
` No construction necessary.
`
`Speir agrees that “known device latency” is not “actual device latency.” Resp. Br. 2.
`
`The parties’ sole remaining dispute is whether “known device latency” is “predetermined” (i.e.,
`
`known prior to the claimed ranging calculation).1 Speir argues that, because “known device
`
`latency” can “be a measured value based upon collected data,’” it is not “predetermined.” Resp.
`
`Br. 2. But Speir’s argument defies logic: a “known device latency” used in a given ranging
`
`calculation can, of course, be determined in advance of that ranging calculation based upon
`
`collected data—and in these patents it is.
`
`As reflected in the very specification passage that Speir bases the entirety of its argument
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`upon, “known device latency” is an average value that has been calculated for a given “type of
`
`target device,” is “known” by the controller, and is either (1) based on collected data, (2)
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`provided by manufacturers, or (3) based on a value set in a communications standard:
`
`The quantities that the controller 42 will not know are the propagation delays
`tPD1, tPD2 and the actual device latency tDL. [¶] Yet, as noted above, the
`controller 42 will have access to the known device latency (i.e., a mean
`latency) for the given device type of the target device 34, which provides a
`close approximation of the actual device latency tDL. The known device latency
`could be a measured value based upon collected data, it could be provided
`by manufacturers, or it could be based upon a value set in a communications
`standard, as discussed above, for example.
`
`’779 Patent, 7:9-19 (emphasis added); Resp. Br. 2 (citing ’779 Patent, 7:12-19). This excerpt
`
`makes clear that, unlike actual device latency, the known device latency for a given device type
`
`
`1 The dispute between the parties regarding this term’s scope must be resolved by the Court. See
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008).
`
`1
`
`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 7 of 22
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`is a value “known” by the controller (i.e., a value that the controller “will have access to”), and
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`that known device latency is the calculated average (i.e., mean) latency for that type of target
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`device.
`
`The above quote also highlights the contradiction between (1) Speir’s position that
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`“known device latency” is not “predetermined” and (2) Speir’s tacit agreement that the term
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`means the “latency for the given device type of the target wireless communication device.”2
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`How else could the controller have access to this average, device-type, latency if not for the fact
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`that the average was calculated in advance for that type of device (i.e., predetermined)?
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`In short, the term “known device latency” is used “throughout the entire patent
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`specification, in a manner consistent with only a single meaning”—a predetermined latency for
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`the given device type of the target wireless communication device.3 Homeland Housewares,
`
`LLC v. Whirlpool Corp., 865 F.3d 1372, 1377 (Fed. Cir. 2017) (quoting Bell Atl. Network Servs.,
`
`Inc. v. Covad Commc’ns Grp., Inc., 262 F.3d 1258, 1271 (Fed. Cir. 2001))), cert. denied, 138 S.
`
`Ct. 2602 (2018).
`
`II.
`
`U.S. PATENT NO. 7,765,399 (THE ’399 PATENT)
`
`A.
`
`“human/machine interface” (claims 1, 2, 3, 4, 5, and 9)
`
`Apple’s Proposed Construction
`“an interface by which a user inputs information
`to, and receives information from, a device”
`
`Speir’s Proposed Construction
` No construction necessary.
`
`Speir agrees with the core of Apple’s construction—that the claimed “human/machine
`
`interface” is an interface by which a user inputs information to, and receives information from, a
`
`
`2 Speir does not dispute that the specification ties “known device latency” to the latency
`generally associated with a “device type.” Resp. Br. 1-4; Opening Br. 4-5.
`3 That the specification elsewhere uses the word “predetermined” to describe the background
`art’s “response . . . window” (Resp. Br. 4) does not undo this “single meaning” that the
`specification imparts to “known device latency.”
`
`2
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 8 of 22
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`device. Resp. Br. 5 (admitting that the claimed interface must enable “the ‘bi-directional’
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`communication of information”). Speir’s sole objection to Apple’s construction is that it
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`purportedly requires the HMI to be “a single component”—but Apple’s construction requires no
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`such thing. Indeed, as Apple’s Opening Brief explained, the claimed HMI can consist of
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`multiple components, such as “both an input device (i.e., keypad/pointing device 412) and an
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`output device (i.e., color display 416) for enabling bidirectional communication” between the
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`user and the processor. Opening Br. 8-9 (citing ’399 patent, Figures 4-5).
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`Likewise, dependent claims 2-5 similarly show that the claimed interface can include
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`multiple “input”/“output” components. Speir contends that these examples “undercut Apple’s
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`proposed construction” (Resp. Br. 7), but again that contention is based on the false premise that
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`Apple’s construction limits the HMI to a single component. In fact, all of these examples fall
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`comfortably within the scope of Apple’s construction. Accordingly, Apple’s proposed
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`construction of the claimed “human/machine interface” as “an interface by which a user inputs
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`information to, and receives information from, a device” should be adopted.
`
`B.
`
` “distinct” (claim 1, 7, 9)
`
`Apple’s Proposed Construction
`“physically separate”
`
`Speir’s Proposed Construction
` No construction necessary.
`
`Speir does not deny that applicant secured allowance by adding the word “distinct” to
`
`describe the claimed HMIs—the “non-secure [HMI] distinct from said secure [HMI]”—
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`explaining that this was an “important distinction,” and that the distinct HMIs were “each
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`configured to provide” a user with “direct” and “exclusive” “access and control” to separate
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`processors. See Opening Br. 14 (discussing prosecution history). Speir also admits that the
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`terminally disclaimed ’252 patent application was filed a month later, claiming a “shared” HMI
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`in contrast to the “distinct” HMIs of the ’399 patent. Resp. Br. 14. Speir acknowledges that the
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`3
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 9 of 22
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`’399 and ’252 inventions are “fundamentally different” (Resp. Br. 14), but overlooks that the
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`only differences arise from the ’252 patent’s use of a “shared” HMI rather than the ’399 patent’s
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`“distinct” HMIs: both recite the same processors, engines, and communication transceiver,
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`arranged in the same way, doing the same thing. See Ex. C (’399 patent) cl. 1; Ex. F (’252
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`patent), cl. 1. The differences noted by Speir—the ’252 patent’s “shared” HMI comprising a
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`“multiplexer” responsive to signals from the cryptographic engine—only confirm Apple’s point.
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`See Opening Br. 12. No such components are needed in the ’399 patent because its distinct
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`HMIs are already physically segregated, each connected to one and only one respective
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`processor. In contrast, the ’252 patent’s “shared” HMI requires the “multiplexer” and
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`cryptographic engine to “select” and “connect” that shared HMI to the respective secure and
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`non-secure processors “one . . . at a time.” ’252 patent, 5:57-63. The prosecution history thus
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`confirms that the ’399 patent’s “distinct” HMIs are physically separate.
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`Nevertheless, Speir argues that claims 7 and 18 contradict Apple’s construction because
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`they recite “physical separation” as an “express requirement,” whereas claims 1 and 9 do not.
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`Resp. Br. 10. On the contrary, however, claims 7 and 18 define “distinct”: “so as to provide
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`physical separation.” Plant Equip., Inc. v. Intrado, Inc., No. 2:09-CV-395-JRG, 2012 WL
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`1468594, at *8 (E.D. Tex. Apr. 27, 2012) (the phrase “so as to” indicates a “resulting benefit”);
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`Bos. Sci. Scimed, Inc. v. Cordis Corp., 483 F. Supp. 2d 390, 395 (D. Del. 2007) (construing “so
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`as to” as requiring “but for” causation). In claims 7 and 18, providing two “distinct” file systems
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`results in “physical separation” of the data stored in those file systems. The word “distinct” in
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`claims 1 and 9 should be found to have that same meaning as in claims 7 and 18— “physical
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`separation” of the claimed “distinct” HMIs.4 See Phillips v. AWH Corp., 415 F.3d 1303, 1314
`
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`4 Moreover, Speir’s expert agrees that the “claims make clear” that classified information is
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`4
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 10 of 22
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`(Fed. Cir. 2005) (“the usage of a term in one claim can often illuminate the meaning of the same
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`term in other claims”); In re Varma, 816 F.3d 1352, 1363 (Fed. Cir. 2016) (“the principle that the
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`same phrase in different claims of the same patent should have the same meaning is a strong
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`one”).
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`Speir also does not dispute any of the arguments in Apple’s Opening Brief that Figures
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`1 - 3 and accompanying description are directed to an architecture providing “physical
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`separation” of classified and unclassified data via physically separate processors and physically
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`separate HMIs. See Opening Br. 10-12. Instead, Speir erroneously contends that Figures 4 and 5
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`“do not preclude the possibility” of HMI’s sharing physical components (Resp. Br. 11-12),
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`ignoring that those figures (just like every other Figure and description in the ’399 patent)
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`disclose two physically separate HMIs, each with separate components, each HMI connected to a
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`separate processor. See ’399 patent, Figures 4 and 5 (each separate HMI having its own separate
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`keypad/pointing device (412 and 508), touchscreen controller (414 and 510) and color display
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`(416 and 512)). Speir cannot identify any passage in the ’399 specification suggesting that these
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`components are shared between the HMIs because no such description exists. And, again, such a
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`“shared” HMI was claimed as a “fundamentally different invention” in the ’252 patent.
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`Similarly unpersuasive is Speir’s argument that the two HMIs cannot be “physically
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`separate” because they can purportedly share “power supply lines.” Resp. Br. 11 (citing ’399
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`patent, 7:48-53). Nothing prevents a given power supply line from feeding power to two
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`physically separate devices. Indeed, despite the secure and non-secure processors sharing a
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`“handled by a ‘secure user processor’” “through a ‘secure [HMI]’” and unclassified information
`is “handled by a ‘non-secure user processor’” “through a ‘non-secure [HMI],’” where the
`“secure . . . side of the system” receives, processes, and communicates classified information
`“separately from information that is not.” Dkt. No. 41-11 (Madisetti Decl.) ¶¶ 34, 39.
`
`5
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 11 of 22
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`power supply line, the ’399 patent emphasizes the “advantage” of having “physical separation”
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`of classified and unclassified data processing—accomplished by “non-secure processor” and its
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`unsecure file system, and the “secure processor” and its “secure file system.” ’399 patent, 8:57-
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`9:8. Thus, Speir’s argument that any two components that share a power supply line cannot be
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`physically separate is contrary not only to common sense, but also to the specification. By
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`Speir’s flawed logic, no single component in the claimed mobile device would be “physically
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`separate” from any other component if the whole device were powered by the same battery.
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`Speir also accuses Apple of “misdirect[ting] the Court” by referencing the ’399 patent’s
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`“storage” of data in “separate locations” (Resp. Br. 12), but Speir ignores that the ’399 patent’s
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`physical separation of data and physical separation of HMIs are linked. The architecture
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`disclosed and claimed in the ’399 patent enables separately “storing, processing and
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`communicating classified as well as unclassified data”—doing so via one HMI/processor tandem
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`for classified data, and a physically separate HMI/processor tandem for unclassified data.
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`Opening Br. 12 (citing ’399 patent, 6:43-44, 7:40-44, 8:57-9:8).5
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`Instead of addressing that critical intrinsic evidence, Speir resorts to dictionary
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`definitions. Not only is such evidence “of less significance than the intrinsic record,” dictionary
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`definitions “may not be used ‘to contradict claim meaning that is unambiguous in light of the
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`intrinsic evidence.’” Profectus Tech. LLC v. Huawei Techs. Co., 823 F.3d 1375, 1380 (Fed. Cir.
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`2016) (quoting Phillips, 415 F.3d at 1342). In any event, even those dictionary definitions of
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`“distinct” accord with Apple’s construction because the claimed HMIs are “discrete or not the
`
`
`5 Speir similarly faults Apple for purportedly failing to explain how “separate headphones” show
`“physical separateness” (Resp. Br. 13 n.6), but Apple already explained that, just like the
`separate HMIs, the ’399 patent also describes separate headphones 316 and 318 for voice
`communication, which is just another example of every embodiment of the patent illustrating
`physically separate “interfaces” for the secure and non-secure processors. See Opening Br. 12.
`
`6
`
`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 12 of 22
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`same,” “separate,” “clearly defined,” and “physically separate.” Resp. Br. 9 (citing various
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`dictionary definitions). In the context of the ’399 patent’s claims and specification (as discussed
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`above and in Apple’s Opening Brief), all of these definitions lead to the same conclusion: the
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`secure and non-secure HMIs are “physically separate” because they are “discrete,” “not the
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`same,” and “separate.”
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`Only Apple has offered a cogent construction rooted in the intrinsic evidence, and that
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`construction should be adopted.
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`C.
`
`“classified” / “unclassified” (claim 1, 7, 9)
`
`Apple’s Proposed Construction
`Indefinite
`
`Alternatively: “information designated as
`[implicating / not implicating] matters of
`national security”
`
`Speir’s Proposed Construction
`No construction necessary
`
`Plain and ordinary meaning, i.e.,
`“information that [is / is not] of a sensitive
`nature”
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`Speir’s contention that “classified” and “unclassified” information means information
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`that is or is not “of a sensitive nature” confirms the subjective nature of these terms, and the
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`indefiniteness of the ’399 patent’s claims. Resp. Br. 17. Speir’s sole argument—that the claims
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`are not subjective because they “simply require a binary determination: either data is ‘sensitive’
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`(i.e., ‘classified’) or it is not (i.e., ‘unclassified’)” (Resp. Br. 15)—is contrary to established legal
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`precedent, and contradicted by Speir’s cited cases.
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`Specifically, Speir relies on Vstream Techs. to erroneously assert that any “binary
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`determination is not ‘subjective’[.]” Resp. Br. 16 (citing Vstream Techs., LLC v. PLR Holdings,
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`LLC, No. 6:15CV974-JRG-JDL, 2016 WL 6211550, at *9 (E.D. Tex. Sept. 27, 2016), report and
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`recommendation adopted, No. 6:15-CV-974-JRG-JDL, 201 6 WL 6159624 (E.D. Tex. Oct. 24,
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`2016)). But Speir ignores that the “recommendation” terms at issue in Vstream were held
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`definite not because they were “binary,” but because they did not require a “subjective”
`
`7
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 13 of 22
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`determination. Vstream Techs., 2016 WL 6211550, at *9 (“‘if it is determined that the
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`recommendation should be accepted’ implicates a binary determination: either the
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`recommendation is accepted, or the recommendation is not accepted. The claim does not require
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`a subjective determination like ‘sufficiently correct.’”). Indeed, the same Court found another
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`binary determination—whether something is or is not “sufficiently correct”—subjective and
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`indefinite because “the specification does not provide any guidance as to what ‘criteria’ would be
`
`appropriate to determine whether the output was sufficiently correct” and a POSITA “would
`
`have full discretion to choose whatever criteria she pleased.” Id., at *7. Here, the binary
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`determination of whether information is or is not “of a sensitive nature” is indistinguishable from
`
`a determination if whether something is or is not “sufficiently correct.” And, like in Vstream
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`Techs., a POSITA would have full discretion to choose whatever criteria she pleased to make
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`that subjective determination.6
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`Nor do the ’399 patent’s few “examples” of the “types of information that may qualify as
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`‘classified’/‘sensitive’” render these claims definite. Resp. Br. 17. Even if information that
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`“relates to matters of national security” or “encryption keys” are undeniable examples of
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`“sensitive” information, the specification “does not provide any guidance as to what ‘criteria’
`
`would be appropriate to determine” where the boundary lies between sensitive and non-sensitive
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`information. Vstream Techs., 2016 WL 6211550, at *7. Indeed, like in Interval Licensing, “a
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`skilled artisan is still left to wonder what other forms of [information] are [of a sensitive
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`nature].”). Interval Licensing v. AOL, Inc., 766 F.3d 1364, 1374 (Fed. Cir. 2014); see also
`
`
`6 WSOU is similarly inapposite because the term at issue there (“not fully connected”) was not
`subjective in light of the evidence that showed a clear definition of the term. WSOU Invs., LLC
`v. F5 Networks, Inc., No. 2:20-CV-01878-BJR, 2022 WL 268825, at *4 (W.D. Wash. Jan. 28,
`2022) (“not fully connected would include [things that are] not connected and things that [are]
`partially connected. This statement sufficiently defines the scope of ‘not fully connected.’”).
`
`8
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 14 of 22
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`Vstream Techs., 2016 WL 6211550, at *7-8 (finding the Federal Circuit's analysis in Interval
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`Licensing [] persuasive” because the “limited examples from the specification” result in a “lack
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`information in the record to guide an understanding of this term.”); Halliburton Energy Servs.,
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`Inc. v. M-I LLC, 514 F.3d 1244, 1247 (Fed. Cir. 2008) (finding “fragile gel” indefinite where
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`definitions in the specifications were “too subjective and unclear”); Datamize LLC v. Plumtree
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`Software, Inc., 417 F.3d 1342,1350–56 (Fed. Cir. 2005) (finding “aesthetically pleasing”
`
`indefinite where specification “fail[ed] to provide any objective way to determine whether the
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`look and feel of an interface screen is ‘aesthetically pleasing.’”). Speir offers no response to
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`Apple’s argument that the “intrinsic record provides no guideposts or criteria for making the
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`determination” (Opening Br. 15-16), or the testimony of Dr. John Black that “one POSITA may
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`deem trivial information such as an email address ‘classified’ whereas another may deem
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`sensitive information like a SSN to be ‘unclassified.’” Ex. H (Black Decl.) ¶ 46.7
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`Moreover, Speir’s assertion that “the scope of the claimed invention is unaffected” even
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`though Speir admits that POSITAs could “disagree” on what type of information is or is not
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`“classified” or “of a sensitive nature” defies logic and Federal Circuit (and Supreme Court)
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`precedent. Resp. Br. 18; see Interval Licensing, 766 F.3d at 1371 (“[T]here is an indefiniteness
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`problem if the claim language ‘might mean several different things and no informed and
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`confident choice is available among the contending definitions.’”) (citing and quoting Nautilus,
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`Inc. v. Biosig Instruments, Inc., 572 U.S. at 898, 911 & n.8 (2014). Given Speir’s position that
`
`“classified” and “sensitive” are synonymous, differentiating between “sensitive” and “non-
`
`
`7 Even in governmental “national security” contexts, “[d]eciding what information is classified is
`subjective. . . . Different agencies disagree about issues like this all the time.” Ex. H (Black
`Decl.) ¶ 45 (quoting Jeffrey Fields, a former U.S. State Department and Department of Defense
`employee). When national security experts disagree about the “sensitive nature” of information,
`Speir’s assertion that the terms have an objective boundary to a POSITA is without merit.
`
`9
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 15 of 22
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`sensitive” information is critical because the claims are directed to a configuration where (1)
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`“classified” information is provided to the secure processor via only the “secure” HMI, whereas
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`(2) “unclassified” information is provided to the secure processor via only the “non-secure”
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`HMI. See ’399 patent, cls. 1, 9. In such a system, which HMI is configured to communicate, for
`
`example, a user’s social security number or drivers license number, requires determining whether
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`such information is “sensitive” or “non-sensitive.” A POSITA has no way of determining
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`whether a system configured to treat these two kinds of information in the same, or exact
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`opposite ways, is “covered by the exclusive rights of the patent.” Halliburton Energy Servs., 514
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`F.3d at 1249. Speir’s contention that whether one, or the other, neither, or both types of
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`“information qualifies as ‘confidential’ / ‘sensitive’” does not affect “the scope of the claimed
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`computing system” is therefore untenable.8
`
`Finally, Speir contends that Apple’s alternative construction—which attempts to provide
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`an objective boundary to the scope of these terms by requiring “classified” information to have
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`been “designated as implicating matters of national security”—is “too narrow.” Resp. Br. 19.
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`But as explained in Apple’s brief, this is the only “plausible objective standard by which a
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`POSITA could determine the scope of the claims with reasonable certainty.” Opening Br. 19.
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`Speir refuses to provide any objective criteria by which a POSITA would determine the scope of
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`these claims with reasonable certainty. To the extent the Court rejects Apple’s alternative
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`construction, it must hold these subjective claims indefinite.
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`D.
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`“The mobile PDA computer system according to claim 1” (claim 7)
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`Apple’s Proposed Construction
`Indefinite
`
`8 Speir’s expert agrees that differentiating between “classified” and “unclassified” information
`impacts which “parts” and “aspects of the claimed computing system are utilized to process that
`information.” Dkt. No. 41-11 (Madisetti Decl.) ¶ 34.
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`Speir’s Proposed Construction
`No construction necessary.
`
`10
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`

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`Case 6:22-cv-00077-ADA Document 43 Filed 09/06/22 Page 16 of 22
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`Speir’s rationale for why antecedent basis is present by implication “in light of the claims
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`and prosecution history” is unpersuasive. Resp. Br. 20. First, Speir contends that antecedent
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`basis can be implied because other dependent claims refer back to claim 1’s “computer system.”
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`But claim 7’s use of different language (instead referring back to “the mobile PDA computer
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`system”) is presumed to have a different meaning. See Helmsderfer v. Bobrick Washroom
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`Equip., Inc., 527 F.3d 1379, 1382 (Fed. Cir. 2008) (“Our precedent instructs that different claim
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`terms are presumed to have different meanings.”). Moreover, Speir fails to address or rebut
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`Apple’s arguments supported by expert testimony that a POSITA would not be able to ascertain
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`the scope of this claim with reasonable certainty. Opening Br. 21-22; Ex. H ¶¶ 58-60.
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`Second, Speir’s contradictory positions highlight why its arguments are unpersuasive.
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`Speir continues to insist that “no construction” is necessary, yet Speir also urges the Court to
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`rewrite the claim by construing this term to mean “the computer system according to claim 1”
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`because “the intrinsic evidence confirms that this construction is correct.” Resp. Br. 21. Speir
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`likewise points to the prosecution history as purporting to show what applicant “intended” but
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`“failed” to actually recite in claim 7. Id., 20-21. Yet, earlier in its briefing when discussing the
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`exact same claim, Speir states the opposite—that “the patentee knew how to write claims.” Id.,
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`10.
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`Moreover, the claim redrafting that Speir urges this Court to undertake is
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`“impermissible.”9 Ocean Semiconductor LLC v. Huawei Device USA, Inc., No. 4:20-CV-00991-
`
`ALM, 2022 WL 389916, at *13 (E.D. T