Case 2:18-cv-00504-JRG-RSP Document 134 Filed 12/02/19 Page 1 of 37 PageID #: 5387
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
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`UNILOC 2017 LLC,
`
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`Plaintiff,
`
`
`v.
`
`GOOGLE LLC,
`
`
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`Defendant.
`
`
`Civil Action No.: 2:18-cv-00495-JRG-RSP
`Civil Action No.: 2:18-cv-00496-JRG-RSP
`Civil Action No.: 2:18-cv-00504-JRG-RSP
`
`
`PATENT CASE
`
`JURY TRIAL DEMANDED
`
`
`OPENING CLAIM CONSTRUCTION BRIEF OF UNILOC 2017
`
`James L. Etheridge
`Ryan S. Loveless
`Etheridge Law Group, PLLC
`2600 E. Southlake Blvd., Suite 120 / 324
`Southlake, TX 76092
`Tel.: (817) 470-7249
`Fax: (817) 887-5950
`
`Donald L. Jackson
`VA Bar No. 42,882 (Admitted E.D. Tex.)
`Davidson Berquist Jackson & Gowdey LLP
`8300 Greensboro Dr., Suite 500
`McLean, Virginia 22102
`
`Counsel for Plaintiff Uniloc 2017 LLC
`
`Page 1 of 37
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`GOOGLE EXHIBIT 1023
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`Case 2:18-cv-00504-JRG-RSP Document 134 Filed 12/02/19 Page 2 of 37 PageID #: 5388
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`TABLE OF CONTENTS
`
`I. BACKGROUND ......................................................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`The ‘676 Patent ....................................................................................................... 1
`
`The ‘154 Patent ....................................................................................................... 2
`
`The ‘954 Patent ....................................................................................................... 2
`
`II. THE AGREED TERMS............................................................................................................ 3
`
`III. THE DISPUTED PATENT TERMS ........................................................................................ 3
`
`IV. CONSTRUCTION OF DISPUTED ‘676 PATENT TERMS .................................................. 4
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`“First Radio Interface Standard” and “Second Radio Interface Standard” (claims
`1, 2, 4) ..................................................................................................................... 4
`
`“Station” (each time it appears, including within the term “control station”)
`(claims 1, 2) ............................................................................................................ 4
`
`“The Duration of Operation in Accordance with the First and Second Radio
`Interface Standards is Laid Down Only Approximately While the Respective
`Standards Are Violated Regularly or From Time to Time” (claim 4) .................... 6
`
`Claims 1, 2, and 4 ................................................................................................... 7
`
`“Common Frequency Band” (claim 1) ................................................................... 8
`
`V. CONSTRUCTION OF DISPUTED ‘154 PATENT TERMS ................................................. 10
`
`A.
`
`The Conventional Claim Dispute (Non-Means-Plus-Function) ........................... 10
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`“resolution” (all asserted claims) .................................................................... 10
`
`“creating the high-resolution still picture from said sequence of lower-
`resolution pictures and said estimated motion” (claims 1-4) .......................... 10
`
`“creating the high-resolution still picture from said sequence of lower-
`resolution pictures and said motion vectors” (claims 5-9) .............................. 11
`
`“create the high-resolution picture from said decoded pictures and the motion
`vectors generated by the encoder (2)” (claims 5-9) ........................................ 11
`
`“creating the high-resolution picture from said decoded pictures and the
`received motion vectors” (claim 10) ............................................................... 12
`
`“high-resolution picture” (all asserted claims) ............................................... 12
`
`i
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`7.
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`8.
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`9.
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`10.
`
`11.
`
`12.
`
`13.
`
`14.
`
`15.
`
`16.
`
`“sequence of lower-resolution pictures” (all asserted claims) ........................ 13
`
`“high-resolution still picture” (all asserted claims) ........................................ 13
`
`“estimating motion in said sequence of lower-resolution pictures with sub-
`pixel accuracy” (claims 1-9) ........................................................................... 14
`
`“receiving a sequence of lower-resolution pictures in the form of motion-
`compensated predictively encoded pictures and motion vectors representing
`motion between successive pictures of said sequence” (claim 10)................. 14
`
`“motion-compensated predictive encoding” (claims 1-9) .............................. 15
`
`“motion-compensated predictively encoded” (claim 10) ............................... 16
`
`“generating motion vectors representing motion between successive pictures
`of said sequence” (claims 1-9) ........................................................................ 16
`
`“sequence of I and P-pictures” (Claims 3, 8) .................................................. 16
`
`“recursively adding, in the high-resolution domain, a current decoded picture
`to a previously created picture, said previously created picture being subjected
`to motion-compensation in accordance with the motion vector which is
`associated with the current decoded picture” (claim 4) .................................. 17
`
`“recursively adding, in the high-resolution domain, a current decoded picture
`to a previously created picture, said previously created picture being subjected
`to motion compensation (55) in accordance with the motion vector which is
`associated with the current decoded picture” (claims 9, 10) .......................... 17
`
`17.
`
`“motion vector(s)” (all asserted claims) ......................................................... 18
`
`B.
`
`“Means-Plus-Function” Claim Terms................................................................... 18
`
`18.
`
`19.
`
`20.
`
`21.
`
`22.
`
`“means (1) for receiving a sequence of lower-resolution pictures” (claim 5) 18
`
`“means for receiving a sequence of lower-resolution pictures in the form of
`motion-compensated predictively encoded pictures and motion vectors
`representing motion between successive pictures of said sequence” (claim 10)
`......................................................................................................................... 19
`
`“means for estimating motion in said sequence of lower-resolution pictures
`with sub-pixel accuracy” (claim 5) ................................................................. 20
`
`“means (5) for creating the high-resolution still picture from said sequence of
`lower- resolution pictures and said motion vectors” (claim 5) ....................... 21
`
`“means (5) for creating the high-resolution picture from said decoded pictures
`and the received motion vectors” (claim 10) .................................................. 22
`
`ii
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`23.
`
`“means (53,54) for recursively adding, in the high-resolution domain, a
`current decoded picture to a previously created picture” (claims 9, 10)......... 22
`
`VI. CONSTRUCTION OF DISPUTED ‘954 PATENT TERMS ................................................ 23
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`I.
`
`J.
`
`K.
`
`device fingerprint (all asserted claims) ................................................................. 23
`
`an address of a separate device specified by the customer (all asserted claims) .. 25
`
`determining whether the device fingerprint matches any of a number of device
`fingerprints previously authorized to access the customer account information (all
`asserted claims) ..................................................................................................... 25
`
`Order of steps (a)-(e) of claim 1 (all asserted claims) ......................................... 27
`
`storing, responsive to approving the request, the device fingerprint as a previously
`authorized device fingerprint (claim 4)................................................................. 27
`
`“the number of device fingerprints are stored in a second database accessible by
`the server.” (claim 9)............................................................................................. 27
`
`steps for … identifying, responsive to the server receiving the request, the remote
`computing device fingerprint and by a requesting location (all asserted claims) . 28
`
`steps for . . . determining whether the device fingerprint matches any of a number
`of device fingerprints previously authorized to access the customer account
`information (all asserted claims) ........................................................................... 28
`
`steps for . . . sending, responsive to determining a mismatch between the device
`fingerprint and each of the previously authorized device fingerprints, a
`notification of the request to an address of a separate device specified by the
`customer, the notification indicating (i) the request, (ii) identity of the remote
`computing device, and (iii) the requesting location (all asserted claims) ............. 28
`
`steps for … resolving the request responsive to a reply to the notification (all
`asserted claims) ..................................................................................................... 29
`
`steps for … if resolving the request responsive to a reply to the notification results
`in permitting authorized access to the customer account information by the remote
`computing device, storing the device fingerprint as a previously authorized device
`fingerprint and associating the device fingerprint with the customer account
`information (all asserted claims) ........................................................................... 29
`
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`TABLE OF AUTHORITIES
`
`Cases
`
`35 U.S.C. §112(f) .......................................................................................................................... 29
`Allen Eng’g Corp. v. Bartell Indus.,
`299 F.3d 1336 (Fed. Cir. 2002)........................................................................................... 7
`Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc.,
`289 F.3d 801 (Fed. Cir. 2002)............................................................................................. 7
`Hoffer v. Microsoft Corp.,
`405 F.3d 1326 (Fed. Cir. 2005)........................................................................................... 8
`Interactive Gift Express, Inc. v. Compuserve Inc.,
`256 F.3d 1323 (Fed. Cir. 2001)......................................................................................... 27
`Masco Corp. v. United States,
`303 F.3d 1316 (Fed. Cir. 2002)......................................................................................... 30
`Nautilus Inc. v. Biosig Instruments, Inc.,
`134 S. Ct. 2120 (2014) ...................................................................................................... 28
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ............................................................................................................ 8
`Novo Indus., L.P. v. Micro Molds Corp.,
`350 F.3d 1348 (Fed. Cir. 2003)........................................................................................... 8
`Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017)........................................................................................... 8
`William v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015).................................................................................. 15, 18
`
`Statutes
`
`35 U.S.C. § 112(f) ..................................................................................................................... 3, 30
`
`
`
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`iv
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`I. BACKGROUND
`
`Pursuant to the Court’s Docket Control Order, Plaintiff Uniloc 2017, LLC (“Uniloc”)
`submits its opening claim construction brief and evidence supporting its constructions of the
`disputed claim terms of Uniloc’s U.S. Patent No. 7,016,676 (“the ‘676 patent,” Exhibit 1), U.S.
`Patent No. 6,349,154 (“the ‘154 patent,” Exhibit 2), and U.S. Patent No. 8,949,954 (“the ‘954
`patent”, Exhibit 3). 1
`
`A. The ‘676 Patent
`
`The ‘676 patent is directed to a system for the more efficient use of a radio frequency
`band. The specification describes a system in which multiple radio stations operate using two
`different radio interface standards (i.e., different protocols). Some radio stations use a first
`interface standard and others use a second interface standard. The specification explains that
`these two standards use the same frequency band using similar radio transmission methods. Ex.
`1, 1:20-23. Although there are similarities, the two standards do not operate in the same way.
`The ‘676 patent describes a control station that arbitrates between the two networks to
`maximize use of the common frequency band. Ex. 1, 2:45-47. To control access to the common
`frequency band, the control station can provide certain predefined time periods during which
`either the first radio network or the second radio network can use the common frequency band.
`Ex. 1, 2:51-57.
`Alternatively, the control station can dynamically allocate the common frequency band
`using adaptive protocols, for example, based on demand for the frequency band by the first
`and/or second network. Ex. 1, 2:58-62.
`The ‘676 patent also recognizes that, depending on the particular radio interface standard,
`the beginning and duration of transmission using that standard may only be approximately
`defined. Ex.1, 3:55-56; 4:18-21. As a result, there may be interference between radios using
`
`
`1 All references to a patent specification is made in the xx:yy-zz format, where “xx” refers to a
`column number and “yy-zz” refers to line numbers.
`
`1
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`different standards on the common frequency band. In this regard, the different radio interface
`standards are “violated,” and those violations can occur regularly or from time to time. Ex. 1,
`3:55-58.
`
`B. The ‘154 Patent
`
`U.S. Patent No. 6,349,154 (“the ‘154 patent”) is generally directed to a method of
`creating high-resolution still pictures. Ex.2, 1:6-7. The method involves receiving a sequence
`of lower-resolution pictures; estimating motion in the sequence of pictures with sub-pixel
`accuracy; and creating the high-resolution still picture from the sequence of lower-resolution
`pictures and the estimated motion. Id. at 1:7-14.
`The sequence of pictures is subjected to motion-compensated predictive encoding which
`generates motion vectors representing motion between successive pictures in the sequence. Ex.
`2, 1:34-38. The encoded pictures are then decoded, and the high-resolution picture is generated
`from a combination of the decoded pictures. Id., 1:38-40.
`The creation of the high-resolution picture from a sequence of lower-resolution pictures
`relies on the availability of sub-pixel motion information. The ‘154 patent teaches that using
`motion-compensation predictive encoding based on motion between successive pictures
`(instead of motion between each picture and a reference picture) increases the probability that
`motion vectors with sub-pixel accuracy will be obtained. Ex. 2, 1:42-48.
`
`C. The ‘954 Patent
`
`The ’954 patent is directed to the field of authorizing remote access to secure
`information, such as authorizing access of account information over the Internet. In the system
`of the ’954 patent, a remote computing device requesting access is identified by a server using a
`device fingerprint and a requesting location. A database stores device fingerprints previously
`authorized to access the account information, and the server looks for a match. If the server does
`not find a match, it sends a notification to a device specified by the account holder, along with
`details of the attempted access. This allows the account holder to confirm whether the requesting
`
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`device should be approved or denied. The server then resolves the request and may associate the
`requesting device’s fingerprint as an authorized device or as an unauthorized device.
`
`II. THE AGREED TERMS
`
`There are no agreed terms for the ‘676 patent.
`Uniloc and Google have agreed to the following constructions in the ’154 Patent:
`Terms and Phrases
`Agreed Construction
`
`“decoding said encoded pictures” (claim 1)
`“a decoder (4) for decoding said encoded
`pictures” (claims 5, 10)
`
`[Plain and ordinary meaning]
`[Plain and ordinary meaning]
`
`Uniloc and Defendant Google have agreed to the following claim constructions in ’954
`Patent:
`
`Terms and Phrases
`
`Agreed Construction
`
`“requesting location” (all asserted claims)
`
`Plain and ordinary meaning (no construction
`necessary)
`
`“identifying . . . the remote computing device
`fingerprint and by a requesting location” (all
`asserted claims)
`
`identifying . . . the remote computing device
`by a device fingerprint and by a requesting
`location
`
`III. THE DISPUTED PATENT TERMS
`
`The parties dispute the meaning of 5 claim terms in the ‘676 patent, dispute the meaning
`of 23 claim terms in the ‘154 patent, and dispute the meaning of 11 claim terms in the ‘954
`patent, including five terms alleged by defendant Google to invoke “step-plus-function”
`treatment under 35 U.S.C. § 112(f). The Markman claim construction process was created to
`resolve latent ambiguities in a claim, and to determine when principles of equity should foreclose
`a patentee from asserting a scope surrendered in the patent or the prosecution history. Claim
`construction was never intended to provide a mechanism by which an accused infringer can
`redefine the scope of the patent so as to create a basis to assert non-infringement. Re-definition of
`a claim term should be undertaken sparingly as even a good interpretation of an existing claim
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`term can change the scope of the claim allowed by the Patent Office.
`
`IV. CONSTRUCTION OF DISPUTED ‘676 PATENT TERMS
`A. “First Radio Interface Standard” and “Second Radio Interface Standard” (claims 1,
`2, 4)
`Uniloc’s Proposed Construction
`“different first or second standardized radio
`transmission protocols”
`
`Defendant’s Proposed Construction
`“different first and second protocols for wireless
`transmission of information”
`
`
`
`Uniloc proposes that the terms “first radio interface standard” and “second radio interface
`standard” be construed to mean “different first or second standardized radio transmission
`protocols.” The parties appear to agree that the reference to “first” and “second” standards
`implies that the first and second standards are “different” standards. Thus, the dispute appears to
`relate to what the phrase “interface standard” means. But even with respect to that term, the
`differences in the proposed constructions appear minimal. Uniloc contends the correct
`construction of that phrase is “standardized radio transmission protocols.” Google contends it
`means “protocols for wireless transmission of information.”
`The ‘676 specification provides two examples of radio interface standards – namely,
`IEEE 802.11a and ETSI BRAN HiperLAN/2. Each of them is a wireless transmission protocol
`that, in part, defines the way in which two devices wireless devices communicate. Ex. 1, 1:10-
`23. Uniloc submits that its construction more closely tracks the language of the claims. Uniloc’s
`construction includes the concept that the interface is “standardized.” Uniloc’s construction also
`includes the term “radio” from the claim language instead of “wireless.”
`
`B. “Station” (each time it appears, including within the term “control station”) (claims
`1, 2)
`Defendant’s Proposed Construction
`Uniloc’s Proposed Construction
`“device that transmits wirelessly according to a
`“a network device for the transmission or
`radio interface standard”
`reception of information”
`Uniloc submits that the term “station” should be construed to mean “a network device for
`the transmission or reception of information.” The primary difference between Uniloc’s and
`Google’s construction is that Google’s construction requires that the station be a wireless device.
`
`4
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`There is nothing in the claims that requires the claimed “control station” to be wireless at
`all. Claim 1 of the ‘676 patent, for example, states that the “control station controls the access to
`the common frequency band for stations working in accordance with the first radio interface
`standard and [] renders the frequency band available for access by the stations working in
`accordance with the second radio interface standard ….” There is nothing in the claims that
`requires the “control station” to implement those functions wirelessly.
`In addition, there is nothing in the claims that requires the other “stations” to solely
`transmit wirelessly, which is a potential requirement based on Google’s proposed construction.
`Claim 1 does state that the “stations [] operate in accordance with a first radio interface standard
`and/or a second radio interface standard.” Thus, the “stations” must have a wireless
`communication capability. However, there is nothing about the claims that requires all
`communications with the “stations” to occur wirelessly. Yet, that is a possible read of Google’s
`construction.
`Although the preferred embodiments in the specification include a wireless
`communication capability, there is no disclaimer or other limitation in the specification that
`requires the “control station” to be wireless, or requires that the other claimed “stations” solely
`transmit wirelessly. In fact, the specification states that the control station 13 “preferably”
`operates as a wireless access point of the HiperLAN/2 network. Ex. 1, 5:53-61. The
`specification is silent as to whether there are such negative limitations imposed on the control
`station or the other stations in the communication networks. Google’s construction improperly
`attempts to incorporate a limitation from the specification into the claims. As such, Google’s
`construction is improper and should not be adopted.
`The extrinsic evidence supports Uniloc’s proposed construction. The IEEE Standard
`Dictionary of Electrical and Electronics Terms defines “station” as “[a] physical device that may
`be attached to a shared medium local area network (LAN) for the purpose of transmitting and
`receiving information on that shared medium.” Exh. 4, IEEE Standard Dictionary of Electrical
`and Electronics Terms (6th ed. 1996), p. 1042. The IEEE Dictionary also defines “station” as
`
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`“[o]ne of the input or output devices as a communications network.” Id. As these industry-
`standard definitions make clear, a “station” is not required to be a wireless device or a device that
`solely communicates wirelessly.
`Uniloc’s proposed construction allows the control station to communication via wired or
`wireless communication links. Uniloc’s proposed construction also allows the other stations that
`are under the control of the control station to include both wired and wireless communication
`capabilities. Uniloc’s construction should be adopted by the Court.
`
`C. “The Duration of Operation in Accordance with the First and Second Radio
`Interface Standards is Laid Down Only Approximately While the Respective
`Standards Are Violated Regularly or From Time to Time” (claim 4)
`Uniloc’s Proposed Construction
`Defendant’s Proposed Construction
`“the duration of operation in accordance with
` Indefinite
`the first and second radio interface is defined
`approximately because the first and second
`radio interface standard may be interrupted
`regularly or from time to time”
`Uniloc submits that this term should be interpreted to mean “the duration of operation in
`accordance with the first and second radio interface is defined approximately because the first
`and second radio interface standard may be interrupted regularly or from time to time.”
`The invention relates to the allocation of a common frequency band between two
`different radio networks. In the specification, the control station allocates the frequency band to
`either a first network or a second network. Ex. 1, 2:14-22. The specification explains that the
`control station can set predetermined time periods during which the first radio network and the
`second radio network have access to the frequency band. Ex. 1, 2:51-57. Alternatively, the
`control station can allocate use of the common frequency band dynamically using “adaptive
`protocols” depending on the demand for the common frequency band. Ex. 1, 2:58-62.
`In switching between the first and second radio networks, the specification acknowledges
`that the beginning and end of the transmission windows for the radio networks may only be
`defined approximately. Ex. 1, 3:55-56. The specification state that “[t]he duration of the
`operation in accordance with the second radio interface standard need not be determined exactly
`
`6
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`but may also be determined approximately.” Ex. 1, 4:18-21. Because the beginning and end
`may be approximate, the specification states that there may be “resulting interference” that the
`radios may need to disregard. Ex. 1, 3:58-62; 4:21-26. In this way, the first or second radio
`interface standards are “violated,” and those violations may occur often (i.e., “regularly”) or not
`very often (i.e., “from time to time”). Ex. 1, 3:56-58.
`The disputed claim language captures this scenario in which there is interference between
`the two radio networks because the beginning of the transmission window for one network
`overlaps with the end of the transmission window of the second network. That is all the disputed
`claim language says, and its meaning is easily understood from the specification.
`
`D. Claims 1, 2, and 4
`Defendant’s Proposed Construction
`Uniloc’s Proposed Construction
` Indefinite
`Not indefinite
`Google claims that claims 1, 2, and 4 are indefinite because the preamble of each claim
`refers to a “method,” but there are no obvious method steps recited in the claims. “Generally, the
`preamble does not limit the claims.” Allen Eng’g Corp. v. Bartell Indus., 299 F.3d 1336, 1346
`(Fed. Cir. 2002).
`In general, a preamble limits the invention if it recites essential
`structure or steps, or if it is “necessary to give life, meaning, and
`vitality” to the claim. Pitney Bowes[, Inc. v. Hewlett-Packard Co.],
`182 F.3d [1298,] 1305 [(Fed. Cir. 1999)]. Conversely, a preamble
`is not limiting “where a patentee defines a structurally complete
`invention in the claim body and uses the preamble only to state a
`purpose or intended use for the invention.” Rowe v. Dror, 112 F.3d
`473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir. 1997).
`Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002). Here,
`the word “method” does not recite “essential structure or steps,” and is not “necessary to give
`life, meaning, and vitality” to the claim. Moreover, the claim body recites a structurally
`complete invention.
`The prosecution history shows that the examiner working on the case at the U.S. Patent
`and Trademark Office (“PTO”) understood the claims to be directed to specific type of radio
`
`7
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`system and not a method. In the September 22, 2004 non-final office action, the examiner
`rejected claims 1, and 10-11 as being anticipated by the Ala-Laurila reference. In doing so, the
`examiner characterized Ala-Laurila as “disclos[ing] a communication system comprising stations
`…, [and] a control station ….” Exh. 5, 9/22/2004 Office Action, p. 3. The examiner did not
`apply a prior art reference disclosing a method to the claims. Instead, he applied a structural
`prior art reference as an allegedly anticipating reference.
`Moreover, Google and its expert, Mr. Bates, clearly understand the scope of the claims as
`covering “a specific radio system that includes specific control stations and specific base
`stations.” Exh. 6, Excerpt of Bates Declaration, pp. 21-22. Mr. Bates states that claim 1 “recites
`characteristics of a system,” and then he goes on to delineate exactly what those characteristics
`are. Id.
`Claims that do not “inform those skilled in the art about the scope of the invention with
`reasonable certainty” are indefinite under § 112. Nautilus, Inc. v. Biosig Instruments, Inc., 572
`U.S. 898, 910 (2014). “Indefiniteness must be proven by clear and convincing evidence.” Sonix
`Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).
`Here, there is no debate over the scope of claimed invention. Uniloc, the PTO examiner,
`and Google’s expert all agree that claims 1, 2, and 4 are directed to a specific communications
`system – not a method. See also Hoffer v. Microsoft Corp., 405 F.3d 1326, 1331 (Fed. Cir.
`2005) (“When a harmless error in a patent is not subject to reasonable debate, it can be corrected
`by the court, as for other legal documents.”) (quoting Novo Indus., L.P. v. Micro Molds Corp.,
`350 F.3d 1348, 1356–57 (Fed. Cir. 2003)). Claims 1, 2, and 4 are not indefinite.
`
`E. “Common Frequency Band” (claim 1)
`Uniloc’s Proposed Construction
`“frequency band that can be made available
`for alternate use by a first and second radio
`interface standard”
`Uniloc submits that “common frequency band” should be construed to mean “frequency
`band that can be made available for alternate use by a first and second radio interface standard.”
`
`Defendant’s Proposed Construction
`“frequency band that is assigned for alternate use
`by a first and second radio interface standard”
`
`8
`
`Page 13 of 37
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`Case 2:18-cv-00504-JRG-RSP Document 134 Filed 12/02/19 Page 14 of 37 PageID #: 5400
`
`The primary difference between Uniloc’s and Google’s proposed constructions is that Google’s
`construction requires that the frequency band be “assigned for alternate use,” where Uniloc’s
`construction states that the frequency band “can be made available for alternate use.”
`The claim language supports Uniloc’s proposed construction. Claim 1 reads in part that
`“the control station … renders the frequency band available for access by the stations working in
`accordance with the second radio interface standard if stations working in accordance with the
`first radio interface standard do not request access to the frequency band.” ‘676 patent at 6:29-
`36 (emphasis added). This is a dynamic allocation of the frequency band based on demand for
`the frequency band by the stations using the first radio interface standard. Access to the
`frequency band is not based on assignment of the band to either a first or second set of stations.
`The specification supports Uniloc’s proposed construction. The specification explains
`that, in certain embodiments, the common frequency band is only made available to the second
`radio network if the first radio network does not request access to the frequency band.
`[T]he control station is provided in an advantageous embodiment
`of the invention … for releasing the common frequency band for
`access by stations operating in accordance with the second radio
`interface standard, if stations operating in accordance with the first
`radio interface standard do not request access to the frequency
`band.
`‘676 patent at 3:7-13 (emphasis added). The frequency band is only made available to the radios
`using the second radio interface standard IF radios using the first radio interface standard do n