Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 1 of 9
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`RFCyber CORP.,
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`v.
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`VISA U.S.A. INC.,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`§
`Case No. 6:22-cv-00697-ADA
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`JURY TRIAL DEMANDED
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`Defendant.
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`PLAINTIFF RFCYBER CORP.’S
`SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 2 of 9
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`TABLE OF CONTENTS
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`Page(s)
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`I.
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`II.
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`INTRODUCTION .............................................................................................................. 1
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`TERMS NO LONGER IN DISPUTE................................................................................. 1
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`III.
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`DISPUTED TERMS ........................................................................................................... 2
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`A.
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`“fund” / “funded” / “funding” / “fund stored in an emulator” ................................ 2
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`1.
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`2.
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`3.
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`“funding [an/the] e-purse” (’855 Patent, claims 1, 4, 9, 13) ....................... 4
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`“fund transfer request” (’855 Patent claims 1, 13) ..................................... 4
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`“fund stored in the emulator” (’787 Patent, claim 11) ................................ 5
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`IV.
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`CONCLUSION ................................................................................................................... 5
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`i
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 3 of 9
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`I.
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`INTRODUCTION
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`Visa’s construction of “fund” improperly limits the term to a “money balance.” RFCyber’s
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`Opening Brief explained that there was no such definition within the specifications of the Asserted
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`Patents, and that Visa has failed to show that the Court should so limit the term.
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`As all other disputes have been obviated, the Court should reject Visa’s construction of
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`fund and afford the term its plain and ordinary meaning.
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`II.
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`TERMS NO LONGER IN DISPUTE
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`To streamline the issues before the Court, RFCyber withdrew its infringement assertions
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`against Visa as to all claims of the ’218 Patent, as well as claim 1 of the ’787 Patent and its
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`dependent claims. As a result, the following terms and indefiniteness positions are no longer in
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`dispute:
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`•
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`•
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`Alleged indefiniteness of the asserted system claims of the ’218 and ’787 Patents;
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`“contactless interface that facilitates communication between the e-purse applet in the
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`smart card and the payment server over a wired network,”; and
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`“the agent sends commands or receives responses thereto through the RFID reader
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`to/from the e-purse applet, and on the other hand, the agent composes network requests
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`and receives responses thereto from the network server.”
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`Accordingly, the only terms left in dispute are the “fund” terms discussed below.
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 4 of 9
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`III. DISPUTED TERMS
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`A.
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`“fund” / “funded” / “funding” / “fund stored in an emulator”
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`Term and Claims
`“fund” / “fund stored in the
`emulator” ’855 Patent, Claim
`9, ’787 Patent, Claim 11
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`RFCyber’s Construction
`Plain and ordinary meaning
`except for “emulator”
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`“fund” / “funded” / “funding” Plain and ordinary meaning
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`Visa’s Construction
`“money balance” / “money
`balance stored in the
`emulator”
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`“add / added / adding money
`balance to”
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`As explained in RFCyber’s Responsive Brief, Visa seeks to import a “balance”
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`requirement, despite the term appearing only once in the specification. RFCyber Br. at 4-7. The
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`Court should reject Visa’s attempt to manufacture a non-infringement position by requiring a
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`specific number (a “money balance”) stored on a device.
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`In Reply, Visa first argues that the Court is required to provide a construction for the term
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`to resolve the dispute. Reply at 2. But the Court can resolve the dispute by rejecting Visa’s
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`redefinition of “fund” to “money balance” and simply allow the jury to apply the easily
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`understandable term “fund.”
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`The parties agree that the fund recited in the claims is not actual currency but a
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`representation of currency stored elsewhere. Visa Br. at 5; RFCyber Br. at 5-6. Instead, the dispute
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`is whether the representation on the device must be some “money balance” or a representation of
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`the money stored elsewhere. The intrinsic and extrinsic evidence makes clear that it is the latter.
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`Visa’s cited intrinsic evidence is dependent on the specification’s description of “funding
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`an e-purse.” Reply at 3-5. But “funding an e-purse” is not a claimed element of any Asserted
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`Claim. Those specific words are found only in Claims 1, 4, 9, and 13 of the ’855 Patent. As
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`explained in RFCyber’s Responsive Brief, and further clarified below, “funding an e-purse” is a
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`2
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 5 of 9
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`non-limiting preamble to claims 1 and 9 of the ’855 Patent. Moreover, the language in claims 4
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`and 13 is a reference back to claims 1 and 9.
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`RFCyber provided intrinsic evidence that the other “fund” terms (“fund transfer request”
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`and “fund stored in the emulator”), read in light of the specification, expansively allow the fund
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`stored in the emulator to refer to representations of the source of the money in the transaction, such
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`as tokens, keys, or other objects. RFCyber Resp. Br. at 5-6. Similarly, the “fund transfer request”
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`merely requires funds to be transferred from a financial institution. Id. Visa’s further requirement
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`that the funds be transferred to a balance stored on the device is, at best, an attempt to limit the
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`claim to an embodiment.
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`The extrinsic evidence further confirms that Visa’s construction is improperly narrow.
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`Indeed, the cited evidence says nothing about a “money balance.” Instead, Exhibit 1 defines
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`“fund” as “1: store; 2: sum of money intended for a special purpose.” Ex. 1 at
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`VISA_USA_00009148. A bank account, for example, is certainly a store of money, as is a credit
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`card account or payment token. In each case, the representation on the mobile device is directly
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`tied to the money stored. Moreover, Visa makes no effort to show that the second definition (“sum
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`of money intended for a specific purpose”)1 applies to these patents (or that a person of ordinary
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`skill in the art would understand that to be the “fund” as recited). Visa Br. at 13. But even if it
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`did, a token or other representation would still be linked to the sum of money. Exhibit 2 is even
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`clearer. It defines “fund” as “a supply of money or monetary resources.” A credit card number,
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`bank account number, or payment token stored in the emulator is clearly a representation of a
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`supply of money or monetary resources.
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`1 Visa’s Opening Brief omits “intended for a specific purpose” from its quotation and discussion.
`Visa Br. at 13.
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`3
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 6 of 9
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`1.
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`“funding [an/the] e-purse” (’855 Patent, claims 1, 4, 9, 13)
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`As the District Court for the Eastern District of Texas held, “funding an e-purse” is a non-
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`limiting statement of purpose or intended use. Ex. A at 44-45. The defendants in that case argued,
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`as Visa does here, that the claims of the ’855 Patent “require[] putting money into the e-purse.”
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`Id. at 42. The Court should reject Visa’s argument as to claims 1 and 9 of the ’855 Patent for the
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`same reasons as the Eastern District. Id., RFCyber Br. at 5-7.
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`Claim 4 and claim 13 of the ’855 Patent each recite “wherein the e-purse applet acts as a
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`gatekeeper to regulate or control data exchange between the server and the portable device for
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`funding the e-purse therein” (emphasis added). Claim 4 is ultimately dependent on claim 1 and
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`claim 13 is ultimately dependent on claim 9. The phrase describes that the e-purse applet acts as
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`a gatekeeper during the process claimed in claims 1 and 9. As such, it does not impose a separate
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`requirement that a “money balance” be added to or stored on the device. However, even if the
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`Court accepts Visa’s argument that claim 4 requires such an addition, it does not limit claim 1 for
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`the reasons discussed above. Similarly, claim 13 does not limit claim 9.
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`2.
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`“fund transfer request” (’855 Patent claims 1, 13)
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`Visa argues that the fund transfer request must be “between the user’s bank and the user’s
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`e-purse.” Visa Br. at 11; Visa Reply at 3-4. As RFCyber explained in its Responsive Brief, nothing
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`in the claims or specification requires such a narrow construction. RFCyber Br. at 6-7.
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`In its Reply, Visa cites to an embodiment in the specification which states, “fund the e-
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`purse from an account associated with a bank.” Visa Reply at 3-4. Visa then implicitly limits the
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`claim to this embodiment and states “The meaning of ‘fund’ in that limitation2 is clear – a money
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`balance is subtracted from a bank account and added to the e-purse.” Id. at 4.
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`2 “fund transfer request” as recited in claim 9 of the ’855 Patent. Visa Reply at 3-4.
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`4
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 7 of 9
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`It is well-established that a patent is not limited to embodiments disclosed in the
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`specification. “Although the specification often describes very specific embodiments of the
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`invention, we have repeatedly warned against confining the claims to those embodiments.”
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`Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005). The Court should decline to do so
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`here.
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`3.
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`“fund stored in the emulator” (’787 Patent, claim 11)
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`Visa seeks to limit this term to a “money balance stored in the emulator.” As discussed
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`above, actual money cannot be stored in the emulator on a mobile device. Instead, the device
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`stores a representation of the source of the money. RFCyber Br. at 5-6.
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`Visa provides no reason that the “fund” stored in the emulator must be a money balance.
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`As explained above, Visa’s own dictionaries define a fund as a supply of money or monetary
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`resources. Since actual money cannot be stored in a portable device, there is no principled reason
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`that the representation stored must be a money balance, as opposed to, e.g., a token, key, or credit
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`card account number.
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`IV. CONCLUSION
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`For the reasons set forth above and in RFCyber’s Responsive Brief, the Court should adopt
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`RFCyber’s constructions and reject Visa’s constructions.
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`Dated: October 2, 2023
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`Respectfully submitted,
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`/s/ Richard M. Cowell
`Raymond W. Mort, III
`Texas Bar No. 00791308
`Email: raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`Austin, Texas 78701
`Tel/Fax: 512-865-7950
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 8 of 9
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`OF COUNSEL:
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`Alfred R. Fabricant (Admitted Pro Hac Vice)
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos (Admitted Pro Hac Vice)
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III (Admitted Pro Hac Vice)
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Richard M. Cowell (Admitted pro hac vice)
`NY Bar No. 4617759
`Email: rcowell@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`ATTORNEYS FOR PLAINTIFF
`RFCyber CORP.
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`Case 6:22-cv-00697-ADA Document 45 Filed 10/02/23 Page 9 of 9
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 2, 2023, I electronically filed the foregoing with the Clerk
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`of Court using the CM/ECF system, which will send notification of such filing via electronic
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`mail to all counsel of record. Any other counsel of record will be served by first class U.S. mail.
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` /s/ Richard M. Cowell
` Richard M. Cowell
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