` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 1 of 10 PageID 3168
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`
`FRACTUS, S.A.
`
`Plaintiff,
`
` CIVIL ACTION NO.
` 3:18-CV-2838-K
`
`§
`§
`§
`
`§
`v.
` §
`ZTE CORPORATION,
`§
`ZTE (USA), INC., and
`§
`ZTE (TX), INC.,
`§
`
`§
`
`§
`
`
`Defendants.
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`
`
`AMENDED MARKMAN ORDER
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`
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`Before the Court is the parties' claim construction briefing. After consideration
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`of the parties' claim construction briefing on the disputed phrases (Doc. Nos. 77, 82,
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`and 85), all supporting material filed with these briefs, and the previous claim
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`construction order issued in this case prior to this case being transferred to this Court,
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`the Court construes the disputed claim phrases.
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`A. Background
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`
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`This is a patent infringement case in which the Plaintiff, Fractus, S.A.
`
`("Fractus"), alleges that the Defendants, ZTE Corporation, ZTE (USA), Inc., and ZTE
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`(TX), Inc. (collectively "ZTE"), have infringed a number of patents owned by Fractus.
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`The case originated in the Eastern District of Texas, Marshall Division and was
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`assigned to the Honorable Rodney Gilstrap. The Defendants moved that Court to
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`transfer venue to the Northern District of Texas, which Judge Gilstrap granted. Prior
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 2 of 10 PageID 3169
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`to transferring the venue of this case to the Northern District of Texas, the parties filed
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`claim construction briefing in which the parties presented a number of patent claim
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`phrases that the parties assert require construction. Judge Gilstrap issued a
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`Memorandum Opinion and Order (Doc. No. 93) in which Judge Gilstrap construed
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`the disputed terms and phrases. The Court has reviewed the parties' claim construction
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`briefing and Judge Gilstrap's claim construction order. While the Court is in agreement
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`with most of Judge Gilstrap's constructions of the disputed phrases, the Court does not
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`adopt the construction of "fractal type antenna." The Court, therefore, issues this
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`Amended Markman Order and construes the disputed terms and phrases as follows.
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`B. Patents in Suit
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`
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`There are seven patents in suit, which are U.S. Patent 7,394,432; U.S. Patent
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`7,397,431; U.S. Patent 8,941,541; U.S. Patent 8,976,069; U.S. Patent 9,054,421;
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`U.S. Patent 9,240,632; and U.S. Patent 9,362,617. The inventions of the patents are
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`all related to multiband antennas having, what the patents refer to as, multilevels.
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`These antennas have multiple levels of structural detail incorporated into their design.
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`The multiple levels of structural detail are created by the combination of smaller
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`geometric shapes into an overall larger geometric shape. The various levels of detail are
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`each associated with different frequency bands. In this manner, one antenna can be
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`used with multiple frequency bands while being smaller than other multiband antennas
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`known in the art.
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 3 of 10 PageID 3170
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`C. The Disputed Phrases
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`The parties dispute the meanings of the following claim phrases:
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`1. "multilevel structure" and "structure for the multiband antenna,"
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`2. "antenna element having a multi-band behavior,"
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`3. "majority of the geometric elements,"
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`4. "level of structural detail" and "levels of detail,"
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`5. "geometric element" and "polygon,"
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`6. "set of closed figures bounded by the same number of sides, the sides
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`comprising one or more straight lines, portions of circles and portions of ellipses,"
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`7. "number of sides,"
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`8. The "substantially within" terms, which are "said second [and third] portion[s]
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`being located substantially within the first portion," "at least substantial parts of said
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`second and third portions being part of the first portion," and "a [second/third] portion
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`located substantially within the first portion."
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`9. "the second portion is a second level of structural detail within the first level
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`of structural detail,"
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`10. "overall structure of the conductive radiating element" and "overall structure,"
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`11. "frequency band," and
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`12. "fractal type antenna"
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 4 of 10 PageID 3171
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`D. Disputed Phrases for Which the Court Agrees with the Previous
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`Constructions
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`The Court has fully reviewed the patents in suit, the parties' claim construction
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`briefing, and Judge Gilstrap's construction of the disputed phrases. The Court agrees
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`with the constructions of Judge Gilstrap for all disputed phrases, except for the phrase
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`"fractal type antenna." For all other phrases, besides "fractal type antenna," the Court
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`fully adopts the constructions of Judge Gilstrap and the reasoning described in his
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`Memorandum Opinion and Order (Doc. No. 93) for those constructions. For clarity,
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`the Court has included the adopted constructions of these disputed phrases in the
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`Court's claim construction chart attached to this order.
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`E. "fractal type antenna"
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`The Court does not adopt Judge Gilstrap's construction of "fractal type antenna"
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`and construes this disputed phrase as follows.
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`
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`The parties dispute the meaning of "fractal type antenna," which occurs in claim
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`1 of the '421 patent. The Plaintiff proposes that this phrase be construed to mean "an
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`antenna with a self-similar shape generated in an iterative manner." The Defendants
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`propose that the phrase be construed to mean "an antenna possessing ideal fractal
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`geometry." Judge Gilstrap construed "fractal type antenna" to mean "an antenna with a
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`self-copying shape generated in an iterative manner on different scaling levels."
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`The dispute of this phrase is over the meaning of a "fractal" as it applies to
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`antennas. Strictly speaking, a fractal is an abstract mathematical concept which defines
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 5 of 10 PageID 3172
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`a shape that has an infinite number, self-similar shapes across different scaling levels.
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`Regardless of the scale at which one views a fractal, the fractal presents the same shape
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`or pattern. As a mathematical concept, the self-similarity at different scaling levels is
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`infinite, so no matter how many times the scaling is increased, the same pattern or
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`shape is repeated again and again.
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`The confusion with the construction of "fractal type antenna" stems from the
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`practical limitations of application of this abstract mathematical concept. Because the
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`abstract concept includes an infinite number of self-similar shapes at an infinite number
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`of scaling levels, the creation of an actual physical fractal is impossible. While one may
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`create a fractal-like object that displays a self-similar shape at multiple scaling levels,
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`one cannot create a fractal object that displays a self-similar shape at all scaling levels.
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`Eventually the level of detail required to do this becomes too small to practically
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`manufacture. For this reason, there will ultimately be a level of scale for a fractal-like
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`object at which the object no longer displays a self-similar shape. Therefore, in creating
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`a fractal-like object, the best that can practically be created is an object having multiple
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`fractal type iterations or, in other words, an object with multiple but a finite number
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`of fractal iterations at multiple scaling levels.
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`A person of ordinary skill in the art would understand that a true fractal is a
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`mathematical concept and would also understand the practical limitations on creating
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`a real fractal type object. With this understanding, a person of ordinary skill in the art
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`would understand that the claim's reference to a "fractal type antenna" is to an antenna
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 6 of 10 PageID 3173
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`that has a shape with multiple but a finite number of fractal iterations at different
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`scaling levels.
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`The Plaintiff's, Defendants', and Judge Gilstrap's constructions of "fractal type
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`antenna" all attempt to address the issue of defining a fractal in the context of the
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`practical limitations on creating a fractal-like object. The Plaintiff's proposed
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`construction, which is "an antenna with a self-similar shape generated in an iterative
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`manner," captures the self-similar shape requirement of a fractal, but leaves out the
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`requirement for this to occur on multiple scaling levels and fails to address the practical
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`limitation of not being able to create a real object that is a fractal. The Defendants'
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`proposed construction, which is "an antenna possessing ideal fractal geometry," fails to
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`address the practical limitations of creating a fractal object. Because it is impossible to
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`create an antenna possessing ideal fractal geometry, the Defendants' proposed
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`construction does little to define anything. Judge Gilstrap's construction, which is "an
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`antenna with a self-copying shape generated in an iterative manner on different scaling
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`levels," is better than the Plaintiff's and Defendants' proposed constructions, because it
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`addresses the fractal property of having self-similar shapes at different scaling levels.
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`The Court believes that it is not necessary to attempt to define the word "fractal"
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`in the construction of this phrase. The unclarity of the phrase does not stem from the
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`definition of "fractal." Instead the unclarity of the phrase comes from the application
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`of that mathematical concept to the actual object that is claimed. A person of ordinary
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`skill in the art would understand these issues in the context of the patents in suit. A
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 7 of 10 PageID 3174
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`person of ordinary skill in the art would also understand that the claim's reference to a
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`fractal type antenna cannot be to a true fractal. Instead, the reference to a fractal type
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`antenna is to an antenna having multiple fractal iterations, but it is not to a true fractal
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`because there are only a finite number of fractal iterations on the antenna, as opposed
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`to a true fractal which has an infinite number of fractal iterations. For these reasons,
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`the Court construes "fractal type antenna" to mean "an antenna having a shape with
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`multiple but a finite number of fractal iterations at different scaling levels."
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`The Court's construction of "fractal type antenna" replaces the previous
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`construction of the phrase. All of the previous constructions of other disputed phrases
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`are adopted as this Court's construction. All phrases submitted by the parties as phrases
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`with agreed constructions are also adopted as the Court's construction of those phrases.
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`The Court's construction of disputed phrases is summarized in the attached Court's
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`Claim Construction Chart.
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`SO ORDERED.
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`Signed March 15th, 2019.
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`__________________________________
`ED KINKEADE
`UNITED STATES DISTRICT JUDGE
`
`7
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 8 of 10 PageID 3175
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`Court's Claim Construction Chart
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`
`
`"a structure for an antenna usable at multiple frequency
`bands with at least two levels of detail, wherein one level
`of detail makes up another level. These levels of detail
`are composed of polygons (polyhedrons) of the same
`type with the same number of sides (faces) wherein most
`of the polygons (polyhedrons) are clearly visible and
`individually indistinguishable and most of the polygons
`(polyhedrons) having an area of contact, intersection or
`interconnection with other elements (polygons or
`polyhedrons) that is less than 50% of the perimeter or
`area"
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`"more than 50% of the geometric elements"
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`"detail that clearly shows the overall structure"
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`"detail that clearly shows most of the individual
`elements"
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`"a first level of detail that clearly shows the overall
`structure and a second level of detail that clearly shows
`most of the individual elements"
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`"a closed plane figure bounded by straight sides, further
`including circles and ellipses, where a portion of a circle
`or ellipse is counted as one side"
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`"multilevel structure"
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`and
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`"structure for the
`multiband antenna"
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`and
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`"antenna element
`having a multi-band
`behavior"
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`"majority of the
`geometric elements"
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`"first level of
`structural detail"
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`"second level of
`structural detail"
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`"two levels of detail"
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`"geometric element"
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`and
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`"polygon"
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`8
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 9 of 10 PageID 3176
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`
`Plain and ordinary meaning
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`
`Plain and ordinary meaning
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`"the second [and third] portion[s] has an area that
`substantially overlap[s] an area of the first portion,
`where the portions differ in size or configuration"
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`"the second and third portions have areas that
`substantially overlap an area of the first portion, where
`the portions differ in size or configuration"
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`"the [second/third] portion has an area that substantially
`overlaps an area of the first portion, where the portions
`differ in size or configuration"
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`
`Plain and ordinary meaning
`
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`"a set of closed figures
`bounded by the same
`number of sides, the
`sides comprising one
`or more straight lines,
`portions of circles and
`portions of ellipses"
`
`
`"number of sides"
`
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`"said second [and
`third] portion[s]
`being located
`substantially within
`the first portion"
`
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`"at least substantial
`parts of said second
`and third portions
`being part of the first
`portion"
`
`
`"a [second/third]
`portion located
`substantially within
`the first portion"
`
`
`"the second portion is
`a second level of
`structural detail
`within the first level
`of structural detail"
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`9
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` Case 3:18-cv-02838-K Document 159 Filed 03/15/19 Page 10 of 10 PageID 3177
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`"overall structure of
`the conductive
`radiating element"
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`and
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`"overall structure"
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`"frequency band"
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`"fractal type antenna"
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`Plain and ordinary meaning
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`"a range of frequencies"
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`"an antenna having a shape with multiple but a finite
`number of fractal iterations at different scaling levels"
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`10
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