Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 1 of 8 PageID #: 1059
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`JOE ANDREW SALAZAR,
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`Plaintiff,
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`v.
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`HTC CORPORATION,
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`Defendant.
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`Civil Action No.
`2:16-cv-01096-JRG-RSP
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`JURY TRIAL DEMANDED
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`DEFENDANT’S SURREPLY TO PLAINTIFF’S REPLY TO DEFENDANT’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`Jerry R. Selinger
`State Bar No. 18008250
`Trampas A. Kurth
`State Bar No. 24055807
`Susan E. Powley
`State Bar No. 00784785
`PATTERSON & SHERIDAN, LLP
`1700 Pacific Ave., Suite 2650
`Dallas, Texas 75201
`(214) 272-0957 (Telephone)
`(713) 623-4846 (Facsimile)
`jselinger@pattersonsheridan.com
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`ATTORNEYS FOR DEFENDANT
`HTC CORPORATION
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`Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 2 of 8 PageID #: 1060
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`TABLE OF CONTENTS
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`Introduction ............................................................................................................. 1 
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`“Base Station” ......................................................................................................... 1 
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`The “Microprocessor” Limitations ......................................................................... 2 
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`The “Memory Device” Limitations ........................................................................ 3 
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`The “Selector” Limitations ..................................................................................... 4 
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`I. 
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`II. 
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`III. 
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`IV. 
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`V. 
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`i
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`Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 3 of 8 PageID #: 1061
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`TABLE OF AUTHORITIES
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`Cases
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`IPXL Holdings, L.L.C. v. Amazon.com, Inc.,
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`430 F.3d 1377 (Fed. Cir. 2005)............................................................................... 3
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`KKG, LLC v. The Rank Group PLC,
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`No. 2:11-cv-00012 (E.D. Tex. April 16, 2013) .......................................................2
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`Microsoft Corp. v. Multi-Tech. Sys., Inc.,
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`357 F.3d 1340, 1348 (Fed. Cir. 2004)..................................................................2, 4
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`Typhoon Touch Technologies, Inc. v. Dell, Inc.,
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`No. 6:07-cv-546 (E.D. Tex. July 23, 2009) ............................................................ 3
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`Statutes
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`35 U.S.C. § 112 .................................................................................................................. 4
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`ii
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`Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 4 of 8 PageID #: 1062
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`I.
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`Introduction
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`Salazar waited until his reply brief to abandon “no construction necessary - plain and
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`ordinary meaning” and unveil his “capability” construction. His reply brief also includes
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`characterizations of the intrinsic evidence that properly belonged in his opening brief, which
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`would have allowed HTC to address the many errors and omissions. Salazar’s gamesmanship
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`compels HTC to file this focused surreply brief.
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`II.
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`“Base Station”
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`Salazar unfairly characterizes a minor change in HTC’s proposed construction of “base
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`station.” HTC’s realignment followed a Stipulation in which Salazar abandoned several
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`constructions, e.g., “communications … system.” [Dkt. 89] Moreover, while acknowledging
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`that HTC’s construction was realigned, Salazar seeks to distract focus with arguments about
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`aspects of a construction no longer pursued by either side. Such arguments are irrelevant.
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`Claim 10 recites two different devices employed together in a “communications …
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`system.” Contrary to Salazar’s arguments, Figures 4 and 5 identify specific structures in “the
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`base station device … in accordance with the present invention,” which are not included in
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`Figures 2 and 3, which are “the handset device … in accordance with the present invention.”
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`‘467 Patent, 6:13-22. Compare with Salazar Reply at 3 (“The patent does not discriminate
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`between the components and functionality of the handset or base station.”) In particular, the
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`additional base station structure in Figures 4 and 5 “in accordance with the present invention”
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`includes a telephone line interface 310, an AC line FM coupler 161, an AC power supply 116
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`and a battery charger 110 – none of which are present in the handset device (Figs. 2 and 3).
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`The “communications … system” of claim 10 and its dependencies need not employ all
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`the functionality available from the base station, but the “base station” in the preamble must
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`1
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`Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 5 of 8 PageID #: 1063
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`include the required functionality. Contrary to Salazar’s argument, dependent claim 12 expands
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`the claimed system from one merely able to communicate “with a plurality of external devices,”
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`to one that is actually “coupled to at least one telephone line” by the “telephone line interface” of
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`the base station. Salazar’s claim differentiation argument is inapposite because claim 12
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`expressly adds the “coupled to” limitation. See, e.g., KKG, LLC v. The Rank Group PLC, No.
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`2:11-cv-00012 (E.D. Tex. April 16, 2013) Slip Op. at 12-13 (claim differentiation is of limited
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`weight because the dependent claim “recites other limitations”) [Dkt. 178].
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`Salazar’s reliance on Microsoft Corp. v. Multi-Tech. Sys., Inc., 357 F.3d 1340, 1348 (Fed.
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`Cir. 2004) to elevate the summary snippet into lexicography also is misplaced. First, Microsoft
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`used the summary and the specification to together limit all claims to include a “telephone line,”
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`even though several claims did not mention a telephone line. Id. at 1347-48. Second, the
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`summary alone is merely a summary. Reading the summary in context with claim 10’s
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`requirements of “a base station and a handset employed in a communications … system,” and
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`Figures 2-5 and their corresponding descriptions, the Court should adopt HTC’s construction,
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`clarifying that the base station and handset are two different devices and identifying the
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`differences explicitly required by the applicants.
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`III. The “Microprocessor” Limitations
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`Salazar’s reply brief for the first time asserts the “microprocessor” limitations define
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`“capability,” accusing HTC of seeking to improperly narrow the claims. Salazar pins his
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`argument on a single appearance in the Notice of Allowability of the word “capability,” ignoring
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`the critical relevance of applicants’ amendments and arguments responsive to the rejection of all
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`claims over the Krisbergh patent. See Howlink Global LLC v. Ventris Information Systems, LLC,
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`2
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`Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 6 of 8 PageID #: 1064
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`No. 4:11-cv-71, Slip Op. at 2 (E.D. Tex. August 30, 2012) (rejecting an argument of no
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`disavowal “because the patentee amended the claims to overcome prior art.”)
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`Salazar does not deny that applicants amended the “microprocessor” limitations and then
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`argued patentability based on the amended “microprocessor” limitations. Salazar asserts in
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`conclusory fashion that HTC’s prosecution history quote is taken out of context, but he is wrong.
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`Even the quoted emphasis is from the prosecution history, not something added by HTC.
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` Applicants used functional claim language and added even more functional claim
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`language, thus claiming the structure of “microprocessor” beyond being merely a microprocessor
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`and emphasized that structure for patentability. HTC Response Br. at 8-10. While the claims
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`recite “a microprocessor for generating” and “creating,” for the reasons articulated in Typhoon
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`Touch Technologies, Inc. v. Dell, Inc., No. 6:07-cv-546 (E.D. Tex. July 23, 2009), Slip Op. at 5,
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`the Court should construe those terms as requested by HTC to be requirements, not capabilities.1
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`IV.
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`The “Memory Device” Limitations
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`Salazar seeks to rewrite the “memory device” limitations by ignoring functional language
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`he admits cannot be performed by the memory device. Salazar Reply Br. at 7 (“A
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`microprocessor, and not a memory device, is capable of performing the ‘recreate’ function.”).
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`Yet, Salazar cannot deny the applicants added the memory device limitations (directed to
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`“recreating”) at the same time as the microprocessor limitations (directed to “creating”). These
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`limitations cannot be ignored or simply attributed to a different limitation. Salazar does not
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`dispute the literal claim language defining the functionality identified in HTC’s Brief at 14. Nor
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`could he; Salazar is bound by the actual claim terms. Id. at 15 (citing cases). Finjan, Inc. v.
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`1 IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377 (Fed. Cir. 2005) remains applicable
`and the properly construed claims are indefinite. Again, HTC is limiting its surreply to some of
`the more egregious errors in Salazar’s reply brief.
`3
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`Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 7 of 8 PageID #: 1065
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`Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010) supports HTC, not Salazar: “Here, by
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`contrast, Finjan’s apparatus claims do not require that the proactive scanning software be
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`configured in a particular way ….” Id. at 1204 (emphasis added). Here, the claimed “memory
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`device” must be “configured to” perform the functions. Thus, for the reasons stated above an in
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`HTC’s Responsive Brief, the Court should adopt HTC’s proposed construction.
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` Salazar also concedes (at least by silence) that the memory device lacks sufficient
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`structure to perform all of the recited functionality, triggering application of 35 U.S.C. § 112(f)
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`and that there is no corresponding structure linked to the recited function.
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`V.
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`The “Selector” Limitations
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`Salazar abandons his “no construction necessary” position while incorrectly accusing
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`HTC of seeking to rewrite claim language. HTC simply construes the limitation consistent with
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`applicants’ clear disavowal of claim scope made by claim amendments and arguments during
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`prosecution. HTC Responsive Br. at 17-18. The quoted portions of the prosecution history are
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`clear, unambiguous and reflect applicants’ choice to identify user selection between RF and IR
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`as the key difference between the claimed invention and the prior art Krisbergh patent.
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`HTC’s construction is also supported by the specification. ‘467 Patent, 20:3-7
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`(describing operation “based on the mode selection made via touch sensitive device 14.”) See
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`Microsoft, 357 F.3d at 1347-48 (construing claims as requiring telephone line.) The express
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`claim language provides further support for HTC’s proposed construction that the selector has
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`the capability of receiving signals from external devices via both RF and IR. Since the selector
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`needs to be able to transmit via either RF or IR signals “as desired,” and to receive a signal from
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`any one of the external devices via either RF or IR signals, the selector has to receive via both
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`RF and IR. The Court should adopt HTC’s proposed construction.
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`4
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`Case 2:16-cv-01096-JRG-RSP Document 97 Filed 10/02/17 Page 8 of 8 PageID #: 1066
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`Respectfully submitted,
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`____/s/ Jerry R. Selinger_________________
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`Jerry R. Selinger
`State Bar No. 18008250
`Trampas A. Kurth
`State Bar No. 24055807
`Susan E. Powley
`State Bar No. 00784785
`PATTERSON & SHERIDAN, LLP
`1700 Pacific Ave., Suite 2650
`Dallas, Texas 75201
`(214) 272-0957 (Telephone)
`(713) 623-4846 (Facsimile)
`jselinger@pattersonsheridan.com
`
`ATTORNEYS FOR DEFENDANT
`HTC CORPORATION
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`CERTIFICATE OF SERVICE
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`I certify that on October 2, 2017, that the foregoing document was electronically filed
`with the clerk of the court for the U.S. District Court, Eastern District of Texas, using the
`electronic case filing (“ECF”) system of the court. The attorneys of record who have consented
`in writing to accept notice as service of this document by electronic means are being served by a
`“Notice of Electronic Filing,” sent by the ECF system.
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`____/s/Jerry R. Selinger _____
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