Case 6:22-cv-00642-ADA Document 32-22 Filed 03/31/23 Page 1 of 20
`Case 6:22-cv-00642-ADA Document 32-22 Filed 03/31/23 Page 1 of 20
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`EXHIBIT 22
`EXHIBIT 22
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`Case 6:21-cv-01225-ADA Document 32 Filed 08/12/22 Page 1 of 19Case 6:22-cv-00642-ADA Document 32-22 Filed 03/31/23 Page 2 of 20
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
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`Plaintiff,
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`OZMO LICENSING LLC,
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`
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`v.
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`ACER INC. and
`ACER AMERICA CORPORATION,
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`
`
`Defendants.
`
`Civil Action No. 6:21-cv-01225-ADA
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`PLAINTIFF’S SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:21-cv-01225-ADA Document 32 Filed 08/12/22 Page 2 of 19Case 6:22-cv-00642-ADA Document 32-22 Filed 03/31/23 Page 3 of 20
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`TABLE OF CONTENTS
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`A. “Logic for processing data received via wireless radio circuit” (’814 patent claim 1 and
`all asserted dependent claims) .................................................................................................. 1
`
`B. “Logic for generating data to be transmitted by the wireless radio circuit (’814 patent
`claim 1 and all asserted dependent claims) ............................................................................... 1
`
`C. “Logic for initiating and maintaining wireless network connections with nodes of a wireless
`network external to the network-enabled hub, maintaining at least a first wireless network
`connection using a first wireless network protocol and a second wireless network connection
`using a second wireless network protocol, that can be maintained, at times, simultaneously
`with each other in a common wireless space, wherein the second wireless network protocol
`is an overlay protocol with respect to the first wireless network protocol in that
`communications using the second wireless network protocol are partially consistent with
`the first wireless network protocol” (’814 patent claim 1 and all asserted dependent claims) . 4
`
`D. “Data forwarding logic” (‘814 patent claims 1, and all asserted dependent claims; ‘991
`patent claims 1 and 19, and all asserted dependent claims) ...................................................... 5
`
`E. “First [wireless] network/second [wireless] network” (’814 patent claim 1 and all asserted
`dependent claims; ’991 patent claims 1 and all asserted dependent claims) ............................ 6
`
`F. “Overlay Protocol” (’814 patent claim 1; and all asserted dependent claims; ’991 patent
`claims 1 and 19; and all asserted dependent claim; ’906 patent claims 1 and 4; and all
`asserted dependent claims; ’934 patent claims 1, 4, and 7; and all asserted dependent
`claims; ’504 patent claims 1, 4, and 7 and all asserted dependent claims) ............................... 7
`
`G. “Partially consistent/partially compliant” (’814 patent claim 1 and all asserted dependent
`claims; ’991 patent claims 1 and 19; and all asserted dependent claims; ’906 patent claims
`1 and 4; and all asserted dependent claims; ’934 patent claims 1, 4, and 7; and all asserted
`dependent claims; ’504 patent claims 1, 4, and 7 and all asserted dependent claims) ............. 9
`
`H. “Configured to agree/can agree/mutually agreeable” (’814 patent claim 5; ’991 patent
`claims 8, 11, 12, 20; ’906 patent claims 1, 4; ’934 patent claims 1, 4; ’504 patent claims
`1, 4) ......................................................................................................................................... 11
`
`I. “Personal area network” (’814 patent claims 3, 5; ’991 patent claims 11, 19, 20; ’906 patent
`claims 1, 4, 6, 7, 8, 9, 10, 11, 12; ’934 patent claims 1, 4, 7, 8, 9; ’504 patent claims 1, 4,
`7, 8, 9, 12, 14) ......................................................................................................................... 12
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`J. “At least partially disable the wireless connection” (’906 patent claims 1, 4; ’934 patent
`claims 1, 4; ’504 patent claims 1, 4) ....................................................................................... 14
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`Case 6:21-cv-01225-ADA Document 32 Filed 08/12/22 Page 3 of 19Case 6:22-cv-00642-ADA Document 32-22 Filed 03/31/23 Page 4 of 20
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`Cases
`
`TABLE OF AUTHORITIES
`
`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018) ................................................................................................. 10
`
`Cole v. Kimberly-Clark Corp.,
`102 F.3d 524 (Fed. Cir. 1996) ..................................................................................................... 5
`
`Dyfan, LLC v. Target Corporation,
`28 F.4th 1360 (Fed. Cir 2022) ..................................................................................................... 2
`
`Envirco Corp. v. Clestra Cleanroom, Inc.,
`209 F.3d 1360 (Fed. Cir. 2000) ................................................................................................... 5
`
`In re Katz,
`639 F.3d 1303 (Fed. Cir. 2011) ................................................................................................... 3
`
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014) ................................................................................................. 10
`
`Sage Prods., Inc. v. Devon Indus., Inc.,
`126 F.3d 1420 (Fed. Cir. 1997) ................................................................................................... 5
`
`Skky, Inc. v. MindGeek, S.A.R.L.,
`859 F.3d 1014 (Fed. Cir. 2017) ................................................................................................... 3
`
`TriMed, Inc. v. Stryker Corp.,
`514 F.3d 1256 (Fed. Cir. 2008) ............................................................................................... 4, 5
`
`U.S. Well Services, Inc. v. Halliburton Co.,
`2022 WL 819548 (W.D. Tex. Jan. 17, 2022) ............................................................................ 10
`
`
`
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`ii
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`Case 6:21-cv-01225-ADA Document 32 Filed 08/12/22 Page 4 of 19Case 6:22-cv-00642-ADA Document 32-22 Filed 03/31/23 Page 5 of 20
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`Plaintiff, Ozmo Licensing LLC (“Ozmo”), submits this Sur-Reply Claim Construction
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`Brief to supplement its Responsive Claim Construction Brief, ECF 29 (“Ozmo Br.”), and in
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`response to Acer’s Reply Claim Construction Brief, ECF 31 (“Acer Rep. Br.”).
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`In this Sur-Reply, Ozmo modifies its proposed constructions for the terms listed in sections
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`A-C. Where that occurs, Ozmo notes the change with italics and provides an explanation for the
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`change.
`
`A. “Logic for processing data received via wireless radio circuit” (’814 patent claim 1
`and all asserted dependent claims)
`
`Acer’s Proposed Construction
`Means-plus-function limitation
`
`Function: processing data received from the
`wireless circuit
`
`Corresponding Structure: Processing
`Unit 28 (Fig. 6) along with associated
`software platform 36.
`
`Ozmo’s Proposed Construction
`Ordinary meaning (not means-plus-function)
`
`Function: processing data received via the
`wireless radio circuit
`
`Structure: Hub (in all claims)1. Also,
`processing unit 28 coupled to or integrated
`with wireless circuit 272, software platform
`36, and operating system 37 and their
`equivalents
`
`
`and
`
`B. “Logic for generating data to be transmitted by the wireless radio circuit (’814 patent
`claim 1 and all asserted dependent claims)
`
`Acer’s Proposed Construction
`Means-plus-function limitation
`
`Function: generating data to be sent by the
`wireless circuit
`
`Corresponding Structure: Processing
`Unit 28 (Fig. 6) along with associated
`software platform 36.
`
`Ozmo’s Proposed Construction
`Ordinary meaning (not means-plus-function)
`
`Function: generating data to be transmitted
`via the wireless radio circuit
`
`Structure: Hub (in all claims)3. Also,
`processing unit 28 coupled to or integrated
`with wireless circuit 274, software platform
`36, and operating system 37, and their
`equivalents
`
`
`
`1 See discussion below.
`2 Due to an editing error, the listing of structures Ozmo previously submitted incorrectly listed
`wireless circuit 19 instead of wireless circuit 27.
`3 See discussion below.
`4 Due to an editing error, the listing of structures Ozmo previously submitted incorrectly listed
`wireless circuit 19 instead of wireless circuit 27.
`
`1
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`Acer has asked the Court to rule these two limitations were drafted in means-plus-function
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`(“MPF”) format. But because the limitations do not use the word “means,” they are presumed not
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`to have been drafted in MPF format. “To overcome this presumption, [Acer has] to show, by a
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`preponderance of the evidence, that persons of ordinary skill in the art would not have understood
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`the [“logic”] limitations to connote structure in light of the claim as a whole.” Dyfan, LLC v. Target
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`Corporation, 28 F.4th 1360, 1367 (Fed. Cir 2022).
`
`Ozmo cited seven cases from this district and elsewhere holding “logic” may connote
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`sufficiently definite structure and is not a “nonce” or “functional” word that is subject to the
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`limitations of § 112 ¶ 6. Ozmo Br. at 4-5. Acer made no attempt to distinguish most those cases.
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`Instead, Acer asserted, without explanation, there was “lack of structure in the claim.” Acer
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`Rep. Br. at 1. But in these claims “logic” refers to software code and:
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`Unlike in the mechanical arts, the specific structure of software code…is
`partly defined by its function. In determining whether software limitations like
`those at issue here recite sufficient structure, we can look beyond the initial
`“code”…term to the functional language to see if a person of ordinary skill would
`have understood the claim limitation as a whole to connote sufficiently definite
`structure.
`
`Dyfan, 28 F.4th at 1368 (citations omitted).
`
`Ozmo argued Dyfan, id., held “code for” performing a function would connote a class of
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`structures to a person of ordinary skill in the art if that person would have known that the claimed
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`function could be implemented using “off-the-shelf” code. Ozmo Br. at 5. Acer did not dispute
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`this was Dyfan’s holding. Instead, Acer attempted to distinguish Dyfan on its facts by arguing the
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`defendant’s expert there had conceded the function could be performed using off-the-shelf code.
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`That distinction, however, does not help Acer, because Acer – not Ozmo – has the burden of proof
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`on this issue. Acer has made no attempt to meet its burden.
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`2
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`Here, the functions are the generic processing and generating of data, among the most basic
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`functions of a processor. In 2006, when the first application for these patents was filed, off-the-
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`shelf software would have been readily available to perform those functions; Acer does not
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`contend otherwise. But if Acer had raised that contention, Acer would have had the burden to
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`show, by a preponderance of the evidence, no such off-the-shelf software was then known to exist.
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`Acer offered no such evidence.
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`Acer continues to argue these terms (and the term discussed in C, below), even if not
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`drafted as traditional MPF terms are, should nevertheless be treated as MPF terms because the
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`examiner so viewed them during prosecution, and the patent owner was silent as to that issue. Acer
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`Rep. Br. at 1-2. The Federal Circuit takes a different view. In Skky, Inc. v. MindGeek, S.A.R.L.,
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`859 F.3d 1014 (Fed. Cir. 2017), the examiner viewed a claim term (“wireless device means”) as
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`an MPF term, and the patentee initially agreed during the patent’s prosecution. In a subsequent
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`IPR, the PTAB found otherwise. The Federal Circuit affirmed, agreeing that the term was not an
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`MPF term:
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`The Examiner’s statements at the time of allowance and [the patentee’s] initial
`agreement do not change that result… [W]e are not bound by the Examiner’s or the
`parties’ understanding of the law or the claims. Accordingly, we agree with [the
`patentee] and the Board that “wireless device means” is not a means-plus-function
`term under § 112 ¶ 6.
`
`Id. at 1020 (citations omitted).
`
`
`But even if these terms had actually used language creating a presumption the limitation
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`had been drafted in MPF format (e.g., “means for processing, means for generating”), the claims
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`themselves recite a structure that corresponds to these functions: the “hub,” defined in the common
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`specification as including a wireless circuit and a processor coupled to that circuit. ECF 26-1 at
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`3:37-41. In re Katz, 639 F.3d 1303, 1316 (Fed. Cir. 2011) held:
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`3
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`[C]laimed functions of ‘processing’ [and] ‘receiving’ … can be achieved by any
`general purpose computer without special programming. As such, it was not
`necessary to disclose more structure than the general purpose processor that
`performs those functions … [T]he functions of processing [and] receiving … are
`coextensive with the structure disclosed, i.e., a general purpose processor.
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`According to Katz, the “hub” is sufficient structure. And because that structure is recited in the
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`claim itself, these limitations are not subject to § 112 ¶ 6. TriMed, Inc. v. Stryker Corp., 514 F.3d
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`1256, 1259-60 (Fed. Cir. 2008) (“If, in addition to the word ‘means’ and the functional language,
`
`the claim recites sufficient structure for performing the described functions in their entirety, the
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`presumption of § 112 ¶ 6 is overcome – the limitation is not a means-plus-function limitation.”).
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`C. “Logic for initiating and maintaining wireless network connections with nodes of a
`wireless network external to the network-enabled hub, maintaining at least a first
`wireless network connection using a first wireless network protocol and a second
`wireless network connection using a second wireless network protocol, that can be
`maintained, at times, simultaneously with each other in a common wireless space,
`wherein the second wireless network protocol is an overlay protocol with respect to
`the first wireless network protocol in that communications using the second wireless
`network protocol are partially consistent with the first wireless network protocol”
`(’814 patent claim 1 and all asserted dependent claims)
`
`Acer’s Proposed Construction
`Means-plus-function limitation
`
`Function: initiating and maintaining wireless
`network connection
`
`Corresponding Structure: Processing
`Unit 28 (Fig. 6) and wireless circuit 27 along
`with associated software platform 36.
`
`Ozmo’s Proposed Construction
`Ordinary meaning (not means-plus-function)
`
`Function: initiating and, at times,
`simultaneously maintaining two wireless
`network connections in a common wireless
`space
`
`Structure: connection with a first network
`using a first wireless protocol and a
`connection with a second network using a
`second wireless protocol that is an overlay
`protocol of the first wireless protocol where
`communications using the second wireless
`protocol are partially consistent with the first
`protocol.
`
`Alternatively:
`Processing unit 28 coupled to or integrated
`with wireless circuit 27, software platform 36,
`memory module 29, radio 21, baseband
`modem 22, control and datapath logic 33, and
`operating system 37, as well as the methods
`for “Coordination of Multiple PERs” as
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`4
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`Acer’s Proposed Construction
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`Ozmo’s Proposed Construction
`disclosed FIGs. 11 and 12, and the “Device
`Discovery” procedures contemplated at
`13:16-14:27, and their equivalents
`
`
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`Acer’s identification of the function is wrong. As Ozmo’s proposed construction
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`emphasizes5, the function is not the initiating and maintaining of a single wireless network
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`connection; rather, the function is the initiating and maintaining of two wireless network
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`connections, at times, simultaneously in a common wireless space.
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`The structure for performing that function is recited in the claim itself: 1) a connection with
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`a first network using a first wireless protocol and 2) a connection with a second network using a
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`second wireless protocol that is an overlay protocol of the first wireless protocol where
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`communications using the second wireless protocol are partially consistent with the first protocol.
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`Because the claim itself contains structure to perform the function, the limitation is not in
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`MPF format. TriMed, 514 F.3d at 1259-60; Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed.
`
`Cir. 1996); Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427-28 (Fed. Cir. 1997)
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`(“where a claim recites a function, but then goes on to elaborate sufficient structure, material, or
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`acts within the claim itself to perform entirely the recited function, the claim is not in means-plus-
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`function format”); Envirco Corp. v. Clestra Cleanroom, Inc., 209 F.3d 1360, 1365 (Fed. Cir.
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`2000).
`
`D. “Data forwarding logic” (‘814 patent claims 1, and all asserted dependent claims;
`‘991 patent claims 1 and 19, and all asserted dependent claims)
`
`Acer’s Proposed Construction
`Means-plus-function limitation
`
`Ozmo’s Proposed Construction
`Ordinary meaning (not means-plus-function)
`
`
`5 The proposed function has been significantly revised from the proposed function in Ozmo’s
`previous brief at 8-9 to distinguish between the language in the claim describing the function and
`the language describing the structure.
` To simplify the issues, Ozmo has also deleted from the previous heading the portion of the
`limitation that referred to communications using the second wireless network impinging on
`antennae used for the first wireless network.
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`5
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`Acer’s Proposed Construction
`Function: forwarding data between an
`originating node connected to one network
`and a destination node connected to a
`different network
`
`Corresponding Structure: control/datapath
`logic 33 (Fig. 6) along with associated
`software platform 36.
`
`Ozmo’s Proposed Construction
`Function: forwarding data between an
`originating node and a destination node,
`wherein the originating node is a node in one
`of the first and second wireless networks and
`the destination node is a node in the other of
`the first and second wireless networks
`
`Structure: Software platform 36 (Fig. 6),
`wireless circuit 27, processing unit 28,
`memory module 29, radio 21, baseband
`modem 22, and/or control and datapath logic
`33, and their equivalents
`
`
`As with the first two limitations, Acer does not dispute Ozmo’s contention, Ozmo Br. at
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`11, that off-the-shelf software to perform the generic function of forwarding data between networks
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`would have been known to exist in 2006. That tacit concession should resolve this issue, for the
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`same reasons as set forth in sections A-B above.
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`Ozmo pointed out Acer contradicted its own position by proposing as corresponding
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`structure “control/data path logic 33.” Ozmo Br. at 11. Acer does not respond. Similarly, Acer
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`does not respond to Ozmo’s argument, id., this limitation was not asserted to be MPF during the
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`prosecution history.
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`E. “First [wireless] network/second [wireless] network” (’814 patent claim 1 and all
`asserted dependent claims; ’991 patent claims 1 and all asserted dependent claims)
`
`Acer’s Proposed Construction
`Two distinct wireless networks
`
`Ozmo’s Proposed Construction
`Ordinary meaning
`
`
`
`
`The claims of the ’814 and ’991 patents are drawn to a “network-enabled hub,” and they
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`recite that the hub is a node that is common to a first and to a second network. The claims also
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`recite the second network uses a protocol that differs from the protocol the first network uses. The
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`claims are readily understandable as describing two networks with overlapping nodes, each with
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`its own protocol. A construction that the two networks are “distinct” would add confusion because
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`it would necessitate a clarification that networks can be “distinct” even if they have overlapping
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`6
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`nodes. The Court should thus not instruct the jury on this issue, other than to instruct the claims
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`should be given their ordinary meaning.
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`F. “Overlay Protocol” (’814 patent claim 1; and all asserted dependent claims; ’991
`patent claims 1 and 19; and all asserted dependent claim; ’906 patent claims 1 and 4;
`and all asserted dependent claims; ’934 patent claims 1, 4, and 7; and all asserted
`dependent claims; ’504 patent claims 1, 4, and 7 and all asserted dependent claims)
`
`Acer’s Proposed Construction
`A protocol running on a network with at least
`some distinct components from the
`underlying network to provide added features
`
`Ozmo’s Proposed Construction
`A protocol governing a second network,
`which protocol has aspects in common with a
`first network protocol to reduce interference
`such that the second and first networks can
`co-exist6
`
`
`
`The term to be construed is “overlay protocol.” That term is discussed extensively in the
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`intrinsic record, in Ozmo’s Brief at 12-14, and in citations listed therein. By contrast, Acer appears
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`preoccupied with “overlay network,” Acer Rep. Br. at 6-7, a term that does not appear in the claims
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`or, for that matter, anywhere in the intrinsic record. Nor did the term “overlay network” appear in
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`Ozmo’s Brief.
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`“Overlay protocol” was defined in Vleugels I, ECF 26-8, an application that was
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`incorporated by reference in the common specification, ECG 26-1 at 1:18-20, and thus forms part
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`of the intrinsic record of the patents. The common specification directs attention to Vleugels I for
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`its explanation of how the two networks can coexist, i.e., maintain association and synchronization:
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`“In one embodiment, the software platform 36 enables circuit 27 to connect to the WPAN, without
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`losing connectivity (such as association and synchronization) to the WLAN, as described in
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`Vleugels I.” ECF 26-1 at 7:5-9 (emphasis added).
`
`Ozmo’s Brief walked through Vleugels I’s detailed description of “overlay protocol,” with
`
`citations to the role of the overlay protocol in enabling “coexistence” of the networks. See ECF
`
`
`6 Ozmo earlier explained, Ozmo Br. at 12, n. 4, this proposed construction differed from the one
`set forth in Acer’s Opening Brief, at 11.
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`7
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`26-8 at 10:18, 10:28-29; Abstract, ll. 2-3, 12. As to Ozmo’s proposed construction that the protocol
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`has “aspects in common” with the first network protocol, Vleugels I explained an “overlay
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`protocol…has elements that are reuses of elements of a [primary wireless network] protocol,” id.
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`at 9:39-40, and explained how that feature provides certain advantages, including “the ability to
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`communicate in the [secondary wireless network] without having to disassociate with the [primary
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`wireless network]. Id. at 9:42-44. As to reducing interference, Vleugels I explained “an overlay
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`protocol might be such that a [primary wireless network (“PWN”)]-only device that hears [a
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`secondary wireless network (“SWN”)] packet will be able to…determine how long the wireless
`
`medium will be busy with SWN traffic so that the PWN-only device can appropriately defer.” Id.
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`at 9:47-52.
`
`Acer does not dispute the claimed “overlay protocol” would have some aspects in common
`
`with the first network protocol and would be developed by making modifications to the latter. Acer
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`does dispute, however, whether an “overlay protocol” is one that necessarily reduces interference
`
`such that the two networks can coexist, although its argument on this point is unclear. Acer does
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`not dispute the common specification describes the use of an overlay protocol “that provides
`
`‘coordination’” “[t]o reduce interference.” Acer Rep. Br. at 6; ECF 26-1 at 9:65-66. Acer argues
`
`only that the specification does not explain how it accomplishes that, Acer Rep. Br. at 6-7, an
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`argument that goes to enablement or written description, not claim construction. But as to that
`
`issue, Acer largely ignores the details in Vleugels I supporting that aspect of Ozmo’s construction,
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`discussed in Ozmo Br. at 12-15, including the description of the reduction of interference by one
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`network appropriately deferring transmissions until the other network has finished using the
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`wireless medium. ECF 26-8 at Abstract, 9:47-52.
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`8
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`Case 6:21-cv-01225-ADA Document 32 Filed 08/12/22 Page 12 of 19Case 6:22-cv-00642-ADA Document 32-22 Filed 03/31/23 Page 13 of 20
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`In its Reply Brief, Acer limits its discussion of Vleugels I to a single paragraph. Acer Rep.
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`Br. at 7. That paragraph acknowledges Vleugels I’s disclosure that modifications to the underlying
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`WLAN protocol might permit coexistence of the networks by avoiding interference, such as by
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`scheduling transmissions for specific time slots. Id. Acer also acknowledges some narrower claims
`
`explicitly reference interference reduction. Id. at 7-8. Moreover, Acer’s Reply Brief does not
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`respond to Ozmo’s arguments, Ozmo Br. at 15, that Acer’s proposed construction 1) says nothing
`
`about the protocol itself; and 2) ignores the requirement in Vleugels I that the protocol must have
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`elements that are reuses of elements in the first network protocol.
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`Acer concludes its argument as to this term by asserting its proposed construction “is
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`consistent with the usage of the term in the art” – a strange claim, considering its Reply Brief does
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`not give even a single exemplary use of the term “overlay protocol” in the art. The only examples
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`of the use of “overlay protocol” in the record are those Ozmo cited from the intrinsic record, all of
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`which support Ozmo’s proposed construction. Ozmo Br. at 13-15.
`
`G. “Partially consistent/partially compliant” (’814 patent claim 1 and all asserted
`dependent claims; ’991 patent claims 1 and 19; and all asserted dependent claims;
`’906 patent claims 1 and 4; and all asserted dependent claims; ’934 patent claims 1,
`4, and 7; and all asserted dependent claims; ’504 patent claims 1, 4, and 7 and all
`asserted dependent claims)
`
`Acer’s Proposed Construction
`Indefinite
`
`Ozmo’s Proposed Construction
`Ordinary meaning
`
`(The second, overlay protocol conforms to a
`part, but not to the entirety, of the first
`wireless network protocol).
`
`
`
`Ozmo has proposed this term be given its ordinary meaning, which, in context, would be
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`that the second, overlay protocol conforms to a part, but not the entirety, of the first wireless
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`network protocol.
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`Acer cites three cases in which the court was confronted with a term of degree, thus raising
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`a boundary issue. U.S. Well Services, Inc. v. Halliburton Co., 2022 WL 819548 (W.D. Tex. Jan.
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`17, 2022) (“high pressure”); Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) (“minimal
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`redundancy”); Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014) (“unobtrusive
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`manner”).
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`There is no boundary issue here, however, because, as used in this claim, “partially” is a
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`binary term, like “pregnant” or “bankrupt,” not a term of degree. That is, if the second protocol
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`conforms to the entirety of the first protocol, it is wholly consistent/compliant, not “partially”
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`consistent/compliant. If, instead, it conforms to anything less than all of the first protocol, it is
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`“partially” consistent/compliant. In the latter case, the claim term would be satisfied, independent
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`of the degree of conformance.
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`If the term had been used as a term of degree, that would not be the end of the matter:
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`“Claim language employing terms of degree has long been found definite where it provided
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`enough certainty to one of skill in the art when read in the context of the invention.” Interval
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`Licensing, 766 F.3d at 1370. Ozmo cited portions of the intrinsic record that gave specific
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`examples in which the modifications to the protocol were those that prevented devices compliant
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`with that modified protocol from interfering with devices compliant with the first protocol (i.e.,
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`such that the network using these devices can coexist). Ozmo Br. at 17-21. Thus, even if the term
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`were found to be used as a term of degree, the term remains definite.
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`“Overlay protocol” and “partially consistent/compliant” are related in the sense that some
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`independent claims use those terms to define each other. For example, claims 1 of the ’814 and
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`’991 patents include:
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`[T]he second …network protocol is an overlay protocol with respect to the first…
`network protocol in that communications using the second … network protocol are
`partially consistent with the first… network protocol.
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`The terms could be construed together by construing the above clause as including a second
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`network protocol that has aspects in common with a first network protocol to reduce interference
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`such that the two networks can coexist.
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`H. “Configured to agree/can agree/mutually agreeable” (’814 patent claim 5; ’991 patent
`claims 8, 11, 12, 20; ’906 patent claims 1, 4; ’934 patent claims 1, 4; ’504 patent claims
`1, 4)
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`Acer’s Proposed Construction
`The first and second wireless devices jointly
`determine an inactivity time.
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`Ozmo’s Proposed Construction
`Set up to be able to come to an arrangement
`or understanding.
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`Acer alleges that “[t]he parties’ dispute over this term comes down to whether the hub can
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`unilaterally dictate inactivity times, or whether the hub and the second wireless device must agree
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`to a specific inactivity time.” Acer Rep. Br. at 10. Acer then goes on to say that Ozmo’s proposal
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`is “inconsistent with normal concepts of agreement, which reflect reaching a common ground or
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`understanding.” Id. (emphasis added). Comparing the argument Acer advances with the parties’
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`proposals above, it appears that Acer has conceded that Ozmo’s proposal is, in fact, consistent
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`“with normal concepts of agreement.” This alone should foreclose the issue in favor of Ozmo’s
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`proposed construction.
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`The statement that the devices “agree” on an inactivity period means simply that they are
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`programmed to be inactive for the same period. The devices are programmed to do whatever the
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`WPAN protocol instructs. If the WPAN protocol instructs one device to determine the beginning
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`and duration of an inactivity period, it will instruct the other device to remain inactive during that
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`period. That is what is meant by the devices “agreeing.” How could it be otherwise?
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`The claim language reflects this. For instance, claim 1 of the ’906 patent, ECF 26-3 at
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`15:51-53, reads:
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`11
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`the first wireless device and the second wireless device are configured to agree on
`the inactivity time in accordance with the WPAN protocol
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`(emphasis added). “Configured to” is a common claim drafting term meaning “programmed to.”
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`In this case, it simply means the inactivity period determined “in accordance with the WPAN
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`protocol” will apply to communications between both devices, i.e., the WPAN protocol instructs
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`both devices to observe the inactivity time, however it is determined.
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`Acer’s argument that “an act ordered by the hub cannot be realistically said to be mutually
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`agreeable” does not even apply to humans. A human ordered to perform an act may agree with the
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`order, in which case the act the human is performing would be “mutually agreeable,”
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`notwithstanding it had been ordered. For programmed devices, which simply perform whatever
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`acts they have been programmed to perform, there is even less reason to require some sort of
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`negotiation to reach a “common ground or understanding.” They do not “agree” or “disagree,”