PanOptis Patent Management, LLC et al v. BlackBerry Limited et al

Filing 98

CLAIM CONSTRUCTION MEMORANDUM AND ORDER. Signed by Magistrate Judge Roy S. Payne on 2/6/2017. (nkl, )

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
PANOPTIS PATENT MANAGEMENT,
LLC, et al.,
v.
BLACKBERRY LTD., et al.

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§
§
§
§
§
§

CASE NO. 2:16-CV-62-JRG-RSP

CLAIM CONSTRUCTION
MEMORANDUM AND ORDER
On January 25, 2017, the Court held a hearing to determine the proper construction of
disputed claim terms in United States Patents No. 6,865,191, 7,783,949, 8,064,919, and
8,199,792. Having reviewed the arguments made by the parties at the hearing and in their claim
construction briefing (Dkt. Nos. 88, 90 & 91),1 having considered the intrinsic evidence, and
having made subsidiary factual findings about the extrinsic evidence, the Court hereby issues this
Claim Construction Memorandum and Order. See Phillips v. AWH Corp., 415 F.3d 1303, 1314
(Fed. Cir. 2005); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).

Citations to documents (such as the parties’ briefs and exhibits) in this Claim Construction
Memorandum and Order refer to the page numbers of the original documents rather than the
page numbers assigned by the Court’s electronic docket unless otherwise indicated.
1

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Table of Contents
I. BACKGROUND ....................................................................................................................... 3
II. LEGAL PRINCIPLES ........................................................................................................... 3
III. THE PARTIES’ STIPULATED TERMS ........................................................................... 6
IV. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 8,064,919 .............. 6
A. “a determination unit . . .” (’919 Pat., Cls. 1, 2) ................................................................... 7
B. “a reception unit . . .” (’919 Pat., Cl. 1) .............................................................................. 12
C. “a transmission unit . . .” (’919 Pat., Cl. 2) ......................................................................... 14
V. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 8,199,792 ............. 15
D. “a spreading unit . . .” (’792 Pat., Cls. 1, 3, 4, 6, 12, 14, 20, 21) ........................................ 16
E. “a transmitting unit . . .” (’792 Pat., Cls. 1, 3, 4, 6, 12, 14, 20, 21) ..................................... 17
F. “[is/are] different from” (’792 Pat., Cls. 1, 3, 4, 6, 8–10, 12–17, 22) ................................. 19
VI. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 7,783,949 ............ 24
G. “transmitting unit . . .” (’949 Pat., Cl. 18) and “receiving unit . . .” (’949 Pat., Cls. 18,
21) ....................................................................................................................................... 25
H. “scheduling related control channel” (’949 Pat., Cls. 1, 18, 21), “acknowledg[e]ment
channel” (’949 Pat., Cls. 1, 18, 21), and “data packet[s]” (’949 Pat., Cls. 1, 9, 18, 21) ..... 28
I. “transport format for a retransmission” (’949 Pat., Cls. 1, 18) ............................................ 29
VII. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 6,865,191 .......... 31
J. “a processor . . .” (’191 Pat., Cl. 17) .................................................................................... 32
K. “sending the attachment to a server and . . . transmitting the text message to the
receiving terminal’s phone number based address” (’191 Pat., Cl. 17).............................. 36
VIII. CONCLUSION ................................................................................................................. 40
APPENDIX A .............................................................................................................................. 41

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I. BACKGROUND
Plaintiffs PanOptis Patent Management, LLC and Optis Wireless Technology, LLC
(“Plaintiffs” or “PanOptis”) have alleged infringement of United States Patents No. 6,865,191
(“the ’191 Patent”), 7,783,949 (“the ’949 Patent”), 8,064,919 (“the ’919 Patent”), and 8,199,792
(“the ’792 Patent”) (collectively, the “patents-in-suit”) by Defendants BlackBerry Limited and
BlackBerry Corp (“Defendants” or “BlackBerry”). Plaintiffs submit that the patents-in-suit
relate to wireless communications and in particular the LTE standard for high-speed data in
wireless communications. Dkt. No. 88 at 1.
The Court previously construed terms in the ’191 Patent, the ’919 Patent, and the ’792
Patent in Optis Wireless Technology, LLC, et al. v. ZTE Corp., et al., 2:15-CV-300, Dkt.
No. 116, 2016 WL 1599478 (E.D. Tex. Apr. 20, 2016) (“ZTE”).
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with preliminary constructions with the aim of focusing the parties’ arguments and facilitating
discussion. Those preliminary constructions are set forth below within the discussion for each
term.
II. LEGAL PRINCIPLES
“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
to which the patentee is entitled the right to exclude.’” Phillips, 415 F.3d at 1312 (quoting
Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir.
2004)). Claim construction is clearly an issue of law for the court to decide. Markman v.
Westview Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
(1996). “In some cases, however, the district court will need to look beyond the patent’s
intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the

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background science or the meaning of a term in the relevant art during the relevant time period.”
Teva, 135 S. Ct. at 841 (citation omitted). “In cases where those subsidiary facts are in dispute,
courts will need to make subsidiary factual findings about that extrinsic evidence. These are the
‘evidentiary underpinnings’ of claim construction that we discussed in Markman, and this
subsidiary factfinding must be reviewed for clear error on appeal.” Id. (citing 517 U.S. 370).
To determine the meaning of the claims, courts start by considering the intrinsic
evidence. See Phillips, 415 F.3d at 1313; see also C.R. Bard, Inc. v. U.S. Surgical Corp., 388
F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc.,
262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, 388 F.3d
at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of
ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips,
415 F.3d at 1312–13; accord Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir.
2003).
The claims themselves provide substantial guidance in determining the meaning of
particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
can be very instructive. Id. Other asserted or unasserted claims can aid in determining the
claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
example, when a dependent claim adds a limitation to an independent claim, it is presumed that
the independent claim does not include the limitation. Id. at 1314–15.
“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
at 1315 (quoting Markman, 52 F.3d at 979 (en banc)). “[T]he specification ‘is always highly

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relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to
the meaning of a disputed term.’” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); accord Teleflex, Inc. v. Ficosa N. Am.
Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own
terms, give a claim term a different meaning than the term would otherwise possess, or disclaim
or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
lexicography governs. Id. The specification may also resolve the meaning of ambiguous claim
terms “where the ordinary and accustomed meaning of the words used in the claims lack
sufficient clarity to permit the scope of the claim to be ascertained from the words alone.”
Teleflex, 299 F.3d at 1325. But, “[a]lthough the specification may aid the court in interpreting
the meaning of disputed claim language, particular embodiments and examples appearing in the
specification will not generally be read into the claims.” Comark Commc’ns, Inc. v. Harris
Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc.,
848 F.2d 1560, 1571 (Fed. Cir. 1988)); accord Phillips, 415 F.3d at 1323.
The prosecution history is another tool to supply the proper context for claim
construction because a patent applicant may also define a term in prosecuting the patent. Home
Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
specification, a patent applicant may define a term in prosecuting a patent.”). “[T]he prosecution
history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that
may have been disclaimed or disavowed during prosecution in order to obtain claim allowance.”
Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985).
Although extrinsic evidence can be useful, it is “less significant than the intrinsic record
in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317

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(citations and internal quotation marks omitted). Technical dictionaries and treatises may help a
court understand the underlying technology and the manner in which one skilled in the art might
use claim terms, but technical dictionaries and treatises may provide definitions that are too
broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly,
expert testimony may aid a court in understanding the underlying technology and determining
the particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
evidence is “less reliable than the patent and its prosecution history in determining how to read
claim terms.” Id.
III. THE PARTIES’ STIPULATED TERMS
The parties reached agreement on constructions as stated in their November 4, 2016
P.R. 4-3 Joint Claim Construction and Prehearing Statement (Dkt. No. 85 at Ex. A) and their
January 13, 2017 Joint Claim Construction Chart (Dkt. No. 96 at Ex. A). Those agreements are
set forth in Appendix A to the present Claim Construction Memorandum and Order.
IV. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 8,064,919
The ’919 Patent, titled “Radio Communication Base Station Device and Control Channel
Arrangement Method,” issued on November 22, 2011, and bears an earliest priority date of
March 23, 2007. The Abstract of the ’919 Patent states:
Provided is a radio communication base station device which can obtain a
maximum frequency diversity effect of a downstream line control channel. The
device includes: an RB allocation unit (101) which allocates upstream line
resource blocks continuous on the frequency axis for respective radio
communication mobile stations by the frequency scheduling and generates
allocation information indicating which upstream line resource block has been
allocated to which radio communication mobile station device; and an
arrangement unit (109) which arranges a response signal to the radio
communication mobile station device in the downstream line control channels

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distributed/arranged on the frequency axis while being correlated to the
continuous upstream line resource blocks according to the allocation information.
The Court previously construed terms in the ’919 Patent in ZTE.
A. “a determination unit . . .” (’919 Pat., Cls. 1, 2)
“a determination unit configured to determine a resource of downlink, to which a response
signal transmitted from the base station is mapped, from an index of the allocated resource
block based on the allocation information”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning. See Optis
Wireless Tech. et al. v. ZTE Corp., 2:15-cv300-JRG-RSP, Dkt. 116, 51–55 (E.D. Tex.)
(“ZTE CC Order”) (holding “[determination
unit] is not governed by 35 U.S.C. § 112, ¶6
and needs no further construction.”).

This term is subject to § 112(6).

This claim term should not be governed by
35 U.S.C. § 112(6). But, should the Court
determine that this claim term should be
governed by 35 U.S.C. § 112(6), then PanOptis
identifies that one or more of the following
structure(s), act(s), or materials correspond to
this claim term:

Function: determining a resource of downlink,
to which a response signal transmitted from the
base station is mapped, from an index of the
allocated resource block based on the
allocation information
Structure: an integrated circuit, as described at
col. 22:26–48, that implements the algorithm
described in FIG. 3, in connection with
mapping specifying section 209 of FIGS. 5,
and at col. 4:13–15, 4:21–25, 6:8–20, 8:8–24

Structure: Fig. 5 (209), col. 4:13–15, 4:21–25,
6:8–20, 8:8–24, 22:26–48.
Function: “to determine a resource of
downlink, to which a response signal
transmitted from the base station is mapped”
Dkt. No. 85, Ex. B at 11–12; Dkt. No. 88 at 2; Dkt. No. 90 at 7; Dkt. No. 96, Ex. A at 12–13.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (35 U.S.C. § 112, ¶ 6 does not
apply).”

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(1) The Parties’ Positions
Plaintiffs argue that here as in ZTE, Defendants cannot overcome the presumption that
this non-means term is not governed by 35 U.S.C. § 112, ¶ 6. Dkt. No. 88 at 4.
Defendants respond that “‘determination unit’ is not a term of art that refers to a specific
type of circuit with a known structure,” and “[t]he claim language does not describe how such a
circuit would be ‘specially configured’ to perform the claimed function.” Dkt. No. 90 at 8.
Plaintiffs reply that “unit” has not been found to be a “nonce” term, and the Court should
reach the same conclusion here as in ZTE. Dkt. No. 91 at 1.
At the January 25, 2017 hearing, Defendants emphasized testimony by Plaintiffs’ expert,
Dr. Richard Gitlin, agreeing that the phrase “determination unit” is not a “general term of the
art.” Dkt. No. 90, Ex. 18, Dec. 19, 2016 Gitlin dep. at 32:4–7.
(2) Analysis
Title 35 U.S.C. § 112, ¶ 6 provided: “An element in a claim for a combination may be
expressed as a means or step for performing a specified function without the recital of structure,
material, or acts in support thereof, and such claim shall be construed to cover the corresponding
structure, material, or acts described in the specification and equivalents thereof.”2
“[T]he failure to use the word ‘means’ . . . creates a rebuttable presumption . . . that
§ 112, para. 6 does not apply.” Williamson v. Citrix Online LLC, 792 F.3d 1339, 1348 (Fed. Cir.
2015) (citations and internal quotation marks omitted). “When a claim term lacks the word
‘means,’ the presumption can be overcome and § 112, para. 6 will apply if the challenger
demonstrates that the claim term fails to recite sufficiently definite structure or else recites
“Because the patents-in-suit were all filed before the effective date of the AIA [(America
Invents Act)], pre-AIA 35 U.S.C. § 112 ¶ 6 is applicable, rather than new Section 112(f).” Dkt.
No. 90 at 2 n.1; see Dkt. No. 88 at 3 n.3.
2

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function without reciting sufficient structure for performing that function.” Id. at 1349 (citations
and internal quotation marks omitted).
Williamson, in an en banc portion of the decision, abrogated prior statements that the
absence of the word “means” gives rise to a “strong” presumption against means-plus-function
treatment. Id. (citation omitted). Williamson also abrogated prior statements that this
presumption “is not readily overcome” and that this presumption cannot be overcome “without a
showing that the limitation essentially is devoid of anything that can be construed as structure.”
Id. (citations omitted). Instead, Williamson found, “[h]enceforth, we will apply the presumption
as we have done prior to Lighting World . . . .” Id. (citing Lighting World, Inc. v. Birchwood
Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004)). In a subsequent part of the decision not
considered en banc, Williamson affirmed the district court’s finding that the term “distributed
learning control module” was a means-plus-function term that was indefinite because of lack of
corresponding structure, and in doing so Williamson stated that “‘module’ is a well-known nonce
word.” 792 F.3d at 1350.
As to the “a determination unit . . .” term in the ’919 Patent, ZTE found:
In the claims of the ’919 Patent “unit” is used in combination with a recitation of
capability to denote structure. For instance, although the parties originally
disputed whether “reception unit” and “transmission unit” are structural, Dkt. 66
at 36–37, the parties ultimately agreed that these terms did not need to be
presented to the Court for construction, Dkt. No. 104-1. From this, the Court
understands that there is no dispute that “reception unit” and “transmission unit”
are structural.
“Determination unit,” like “reception unit” and “transmission unit,” connotes
structure. Even if the term “determination unit” does not in isolation connote
sufficiently definite structure, the claim connotes structure to one of skill in the art
by reciting details of how the unit functions as part of the claim. The claim states
the objective of the “determination unit” is “to determine a resource of downlink.”
It further states the “determination unit” achieves this objective using “an index of
the allocated resource block based on the allocation information” received by the

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“reception unit.” That is, the claim requires the “reception unit” be “configured to
receive” the allocation information and requires the “determination unit” be
“configured to determine” a resource of downlink from an index from the
allocation information. So, together, the claims require the “determination unit”
to be connected to the “reception unit” in such a way as to have access to the
allocation information the “determination unit” uses to determine the resource of
downlink. The claim also provides structure through the details of indices of the
allocation information—“the indices of a plurality of the consecutive resource
blocks are respectively associated with a plurality of the resources which are
different in a frequency domain.”
In the context of a mobile-communication-system patent and a claim to a “mobile
station apparatus,” the “determination unit” is a specially configured electronic
circuit. For example, the patentee noted that although the exemplary
embodiments are “configured by hardware,” the unit may be an integrated circuit
(e.g., LSI, IC), a programmed processor circuit, or a programmed logic circuit
(e.g., FPGA). See ’919 Patent col.22 ll.26–48. The Court recognizes the patentee
noted that the particular circuit implementation is not limited to the then-known
circuit-building technology—advancements in semiconductor technology or
biotechnology may allow the circuit to be otherwise constructed—according to
the objectives and operations of the “determination unit.” See col.22 ll.44–48.
But technology does not change the fundamental structure of the unit
as a circuit.
Such a disclosure of the objectives of the “determination unit” and how the unit
operates within the context of the claimed invention connotes sufficiently definite
structure to one of skill in the art. See Linear Tech. Corp. v. Impala Linear Corp.,
379 F.3d 1311, 1319–21 (Fed. Cir. 2004) (“circuit [for performing a function]”
found to be sufficiently definite structure because the claim recited the “objectives
and operations” of the circuit); Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1295,
1301 (Fed. Cir. 2014) (“heuristic [for performing a function]” found to be
sufficiently definite structure in part because the claim described the operation
and objectives of the heuristic); Finjan, Inc. v. Proofpoint, Inc., . . . Case No. 13cv-05808-HSG, 2015 WL 7770208, at *11 (N.D. Cal. Dec. 3, 2015) (“processor
[for performing a function]” found to be sufficiently definite structure because the
claim described how the processor functions with the other claim components);
SuperSpeed, LLC v. Google, Inc., Civil Action No. H-12-1688, 2014 WL 129225,
at *22 (S.D. Tex. Jan. 14, 2014) (code for performing a function connotes
sufficiently definite structure).
Accordingly, the Court finds that this term is not governed by 35 U.S.C. § 112,
¶ 6 and needs no further construction.
ZTE at 53–55 (footnote omitted).

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Unlike ZTE, here the parties dispute whether “reception unit” and “transmission unit” are
structural.
Nonetheless, the substantive analysis of “determination unit” in ZTE is still applicable
here. Defendants have cited cases in which the Court has found certain “unit” terms to be
means-plus-function terms governed by 35 U.S.C. § 112, ¶ 6. See Cellular Commc’ns Equip.
LLC v. HTC Corp., No. 6:13-CV-507, 2015 WL 10741012, at *12–*14 (E.D. Tex. Mar. 9,
2015);3 see also Saint Lawrence Commc’ns LLC v. ZTE Corp., No. 2:15-CV-349, 2016 WL
6275390, at *18–*19 (E.D. Tex. Oct. 25, 2016); id. at *21–*22. Those cases, however,
addressed different terms that appeared in different contexts than the present disputed term. See,
e.g., id., at *19 (“Here, the disputed term recites a ‘unit,’ and the term is otherwise arranged in
means-plus-function format. At the June 29, 2016 [claim construction] hearing, Plaintiff did not
attempt to distinguish the above-discussed portions of Williamson and did not otherwise attempt
to substantively rebut Defendants’ argument that 35 U.S.C. § 112, ¶ 6 applies.”).
On balance, the Court hereby expressly rejects Defendants’ argument that the present
disputed term is a means-plus-function term governed by 35 U.S.C. § 112, ¶ 6. Defendants have
not proposed any construction other than pursuant to 35 U.S.C. § 112, ¶ 6. The Court therefore
concludes that no further construction is required.
The Court thus hereby construes “a determination unit . . .” to have its plain meaning.

3

The parties have cited a Westlaw version of this opinion that appears at 2016 WL 4204137,
which indicates that the Memorandum Opinion and Order in Cellular Communications
Equipment was entered by Judge Leonard Davis on August 9, 2016. The actual date of entry is
March 9, 2015. See No. 6:13-CV-506, Dkt. No. 363 (E.D. Tex. Mar. 9, 2015). The proper
March 9, 2015 date is correctly set forth at the end of 2016 WL 4204137, and a correctly dated
version appears at 2015 WL 10741012. The Memorandum Opinion and Order in Cellular
Communications Equipment was thus entered prior to the Williamson decision in June 2015.
Williamson, 792 F.3d 1339. Nonetheless, this Court’s analysis of the present disputed term
remains the same.
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B. “a reception unit . . .” (’919 Pat., Cl. 1)
“a reception unit configured to receive, from a base station, allocation information
indicating one or a plurality of allocated resource block(s) of uplink, the resource blocks
being consecutive in a frequency domain”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

This term is subject to § 112(6)

This claim term should not be governed by
35 U.S.C. § 112(6). But, should the Court
determine that this claim term should be
governed by 35 U.S.C. § 112(6), then PanOptis
identifies that one or more of the following
structure(s), act(s), or materials correspond to
this claim term:

Function: receiving, from a base station,
allocation information indicating one or a
plurality of allocated resource block(s) of
uplink4
Structure: an integrated circuit, as described at
col. 22:26–48, that implements the algorithm
described in connection with sections 202–208
and antenna 201 of FIG. 5 and at col. 4:13–15,
4:21–25, 5:44–6:7

Structure: Fig. 5 (201, 202), col. 4:13–15,
4:21–25, 5:44–48, 22:26–48.
Function: “to receive, from a base station,
allocation information indicating one or a
plurality of allocated resource block(s) of
uplink”
Dkt. No. 85, Ex. B at 10; Dkt. No. 88 at 3; Dkt. No. 90 at 3; Dkt. No. 96, Ex. A at 11–12.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (35 U.S.C. § 112, ¶ 6 does not
apply).”
(1) The Parties’ Positions
Plaintiffs argue that Defendants cannot overcome the presumption that this non-means
term is not governed by 35 U.S.C. § 112, ¶ 6. Dkt. No. 88 at 6. Plaintiffs submit that “[l]ike
Defendants previously proposed: “receiving, from a base station, allocation information
indicating one or a plurality of allocated resource block(s) of uplink, the resource blocks being
consecutive in a frequency domain.” See Dkt. No. 96, Ex. A at 11 n.4.
4

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‘determination unit,’ the claimed ‘reception unit’ connotes structure to one of skill in the art by
reciting details of how the unit functions as part of the claim.” Id.
Defendants respond that this disputed term uses “unit” as a “nonce” word and fails to
connote structure and, as a result, 35 U.S.C. § 112, ¶ 6 applies. Dkt. No. 90 at 4. Defendants
urge that “[t]he plain language does not limit th[is] term[] to a ‘receiver,’” and “the ’919 patent
never uses the term ‘receiver.’” Id. at 5. Further, Defendants argue, “a ‘receiver,’ . . . is
insufficient structure for the claimed function of ‘receiv[ing], from a base station, allocation
information indicating one or a plurality of allocated resource block(s) of uplink.’” Id.
Plaintiffs reply that “[Defendants’] attempt to distinguish between a
transmission/reception unit and transmitter/receiver elevates form over substance.” Dkt. No. 91
at 2.
At the January 25, 2017 hearing, the parties presented no separate oral argument as to this
term apart from their arguments as to the “a determination unit . . .” term addressed above.
(2) Analysis
For substantially the same reasons set forth above as to “a determination unit . . .,” the
Court finds that the present disputed term is not governed by 35 U.S.C. § 112, ¶ 6.
The Court accordingly hereby expressly rejects Defendants’ argument that the present
disputed term is a means-plus-function term governed by 35 U.S.C. § 112, ¶ 6. Defendants have
not proposed any construction other than pursuant to 35 U.S.C. § 112, ¶ 6. The Court therefore
concludes that no further construction is required.
The Court thus hereby construes the “a reception unit . . .” term to have its plain
meaning.

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C. “a transmission unit . . .” (’919 Pat., Cl. 2)
“a transmission unit configured to transmit data using the allocated resource block(s)
based on the allocation information”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

This term is subject to § 112(6)

This claim term should not be governed by
35 U.S.C. § 112(6). But, should the Court
determine that this claim term should be
governed by 35 U.S.C. § 112(6), then PanOptis
identifies that one or more of the following
structure(s), act(s), or materials correspond to
this claim term:

Function: transmitting data using the allocated
resource block(s) based on the allocation
information
Structure: an integrated circuit, as described at
col. 22:26–48, that implements the algorithm
described in FIG. 1, in connection with
sections 214 and 218 and antenna 201 of
FIGS. 5, and at col. 1:62–65, 4:13–15, 4:21–
25, 6:36–41, 6:58–63, 7:1–3

Structure: Fig. 5 (201, 218), col. 4:13–15,
4:21–25, 6:58–63, 22:26–48.
Function: “to transmit data using the allocated
resource block(s) based on the allocation
information”
Dkt. No. 85, Ex. B at 13; Dkt. No. 88 at 3; Dkt. No. 90 at 3; Dkt. No. 96, Ex. A at 13–14.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (35 U.S.C. § 112, ¶ 6 does not
apply).”
(1) The Parties’ Positions
Plaintiffs argue that Defendants cannot overcome the presumption that this non-means
term is not governed by 35 U.S.C. § 112, ¶ 6. Dkt. No. 88 at 6. Plaintiffs submit that “[l]ike
‘determination unit,’ the claimed ‘transmission unit’ connotes structure to one of skill in the art
by reciting details of how the unit functions as part of the claim.” Id. at 7.

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Defendants respond as to this term together with the “a reception unit . . .” term
addressed above. See Dkt. No. 90 at 3–7. Defendants argue that “a ‘transmitter’ is insufficient
structure for the claimed function of ‘transmit[ting] data using the allocated resource block(s)
based on the allocation information.’” Id. at 5.
Plaintiffs reply that “[Defendants’] attempt to distinguish between a
transmission/reception unit and transmitter/receiver elevates form over substance.” Dkt. No. 91
at 2.
At the January 25, 2017 hearing, the parties presented no separate oral argument as to this
term apart from their arguments as to the “a determination unit . . .” term addressed above.
(2) Analysis
For substantially the same reasons set forth above as to “a determination unit . . .,” the
Court finds that the present disputed term is not governed by 35 U.S.C. § 112, ¶ 6.
The Court accordingly hereby expressly rejects Defendants’ argument that the present
disputed term is a means-plus-function term governed by 35 U.S.C. § 112, ¶ 6. Defendants have
not proposed any construction other than pursuant to 35 U.S.C. § 112, ¶ 6. The Court therefore
concludes that no further construction is required.
The Court thus hereby construes the “a transmission unit . . .” term to have its plain
meaning.
V. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 8,199,792
The ’792 Patent, titled “Radio Communication Apparatus and Response Signal Spreading
Method,” issued on June 12, 2012, and bears an earliest priority date of June 15, 2007. The
Abstract of the ’792 Patent states:
A wireless communication apparatus capable of minimizing the degradation in
separation characteristic of a code multiplexed response signal. In this apparatus,
- 15 -

a control part (209) controls both a AC [sic] sequence to be used in a primary
spreading in a spreading part (214) and a Walsh sequence to be used in a
secondary spreading in a spreading part (217) so as to allow a very small circular
shift interval of the ZC sequence to absorb the interference components remaining
in the response signal; the spreading part (214) uses the ZC sequence set by the
control part (209) to primary spread the response signal; and the spreading part
(217) uses the Walsh sequence set by the control part (209) to secondary spread
the response signal to which PC has been added.
The Court previously construed terms in the ’792 Patent in ZTE.
D. “a spreading unit . . .” (’792 Pat., Cls. 1, 3, 4, 6, 12, 14, 20, 21)
“a spreading unit configured to spread an ACK or NACK with an orthogonal sequence,
which is one of plural orthogonal sequences, and with a sequence defined by a cyclic shift
value, which is one of plural cyclic shift values and which is associated with the orthogonal
sequence”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

This term is subject to 112([6])

Function: spreading an ACK or NACK with an
orthogonal sequence, which is one of plural
This claim term should not be governed by
orthogonal sequences, and with a sequence
35 U.S.C. § 112(6). But, should the Court
defined by a cyclic shift value, which is one of
determine that this claim term should be
plural cyclic shift values and which is
governed by 35 U.S.C. § 112(6), then PanOptis associated with the orthogonal sequence
identifies that one or more of the following
structure(s), act(s), or materials correspond to
Structure: an integrated circuit, as described at
this claim term:
col. 14:9–27, implementing the algorithm
described in FIG. 1, in connection with
Structure: Fig. 6 (214, 217), col. 7:30–40,
sections 214–217 of FIG. 6, and at col. 1:47–
7:45–48, 7:56–60, 14:5–29.
64, 7:45–60
Function: “to spread an ACK or NACK with
an orthogonal sequence . . . and with a
sequence defined by a cyclic shift value”
Dkt. No. 85, Ex. B at 15–16; Dkt. No. 88 at 9.
Plaintiffs argued that Defendants cannot overcome the presumption that this non-means
term is not governed by 35 U.S.C. § 112, ¶ 6. Dkt. No. 88 at 10. Plaintiffs submitted that “[t]he

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claimed ‘spreading unit’ connotes structure to one of skill in the art by reciting details of how the
unit functions as part of the claim.” Id.
Defendants responded: “After further consideration of PanOptis’s brief and expert
declaration, BlackBerry agrees that the term ‘spreading unit’ does not need construction, and is
not subject to § 112 ¶ 6.” Dkt. No. 90 at 12; see id. at 12 n.6 (“Although the term ‘unit’ is a
nonce word, the term ‘spreading unit’ differs from the other ‘unit’ terms addressed in this
brief.”).
Plaintiffs replied: “Blackberry no longer seeks construction of ‘a spreading unit.’
Accordingly, PanOptis does not address the term herein.” Dkt. No. 91 at 2 n.3 (citation omitted).
Because this term is thus no longer disputed, the Court does not further address this term.
E. “a transmitting unit . . .” (’792 Pat., Cls. 1, 3, 4, 6, 12, 14, 20, 21)
“a transmitting unit configured to transmit the ACK or NACK”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

This term is subject to § 112(6)

This claim term should not be governed by
35 U.S.C. § 112(6). But, should the Court
determine that this claim term should be
governed by 35 U.S.C. § 112(6), then PanOptis
identifies that one or more of the following
structure(s), act(s), or materials correspond to
this claim term:

Structure: an integrated circuit, as described at
col. 14:5–27,5 implementing the algorithm
described in connection with section 218 and
antenna 201 of FIG. 6 and at col. 7:61–65

Function: transmitting the ACK or NACK

Structure: Fig. 6 (218), col. 7:61–65, 14:5–27.
Function: “to transmit the ACK or NACK”
Dkt. No. 85, Ex. B at 17; Dkt. No. 88 at 9; Dkt. No. 90 at 12; Dkt. No. 96, Ex. A at 17–18.
5

Defendants previously proposed: “14:9-27.” See Dkt. No. 96, Ex. A at 17 n.6.
- 17 -

Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (35 U.S.C. § 112, ¶ 6 does not
apply).”
(1) The Parties’ Positions
Plaintiffs argue that Defendants cannot overcome the presumption that this non-means
term is not governed by 35 U.S.C. § 112, ¶ 6. Dkt. No. 88 at 11. Plaintiffs submit that “[t]he
claimed ‘transmission unit’ connotes structure to one of skill in the art by reciting details of how
the unit functions as part of the claim.” Id. at 12.
Defendants respond that “the term ‘transmitting unit’ merely uses a nonce term with
functional descriptions.” Dkt. No. 90 at 12. Defendants argue that, similar to the “transmission
unit” term in the ’919 Patent, “the claims contain no structure for performing the recited
function.” Id. at 13. Further, Defendants argue, “the ’792 patent claims a ‘transmitting unit,’ not
a ‘transmitter.’” Id.
Plaintiffs reply: “Again, [Defendants] elevate[] form over substance by trying to
distinguish a ‘transmitting unit’ from a transmitter.” Dkt. No. 91 at 3.
At the January 25, 2017 hearing, the parties presented no separate oral argument as to this
term apart from their arguments as to the “a determination unit . . .” term addressed above.
(2) Analysis
For substantially the same reasons set forth above as to “a determination unit . . .” in the
’919 Patent, the Court finds that the present disputed term is not governed by 35 U.S.C. § 112,
¶ 6.
The Court accordingly hereby expressly rejects Defendants’ argument that the present
disputed term is a means-plus-function term governed by 35 U.S.C. § 112, ¶ 6. Defendants have

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not proposed any construction other than pursuant to 35 U.S.C. § 112, ¶ 6. The Court therefore
concludes that no further construction is required.
The Court thus hereby construes the “a transmitting unit . . .” term to have its plain
meaning.
F. “[is/are] different from” (’792 Pat., Cls. 1, 3, 4, 6, 8–10, 12–17, 22)
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

cannot be the same as

Dkt. No. 85, Ex. B at 15; Dkt. No. 88 at 12; Dkt. No. 90 at 9; Dkt. No. 96, Ex. A at 19.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (Reject Defendants’ proposal of
‘cannot be the same as’).”
(1) The Parties’ Positions
Plaintiffs argue: “The plain claim language requires only that one or more cyclic shift
values associated with one orthogonal sequence is different from one or more cyclic shift values
associated with another. Blackberry’s proposed construction, in contrast, requires that none of
the cyclic shift values associated with one orthogonal sequence be the same as any cyclic shift
value associated with another orthogonal sequence.” Dkt. No. 88 at 14.
Defendants respond that “[t]he patent consistently teaches this ‘difference’ as every
cyclic shift value associated with a given orthogonal sequence is unique compared to values
associated with a second orthogonal sequence.” See Dkt. No. 90 at 10 (citing ’792 Patent at
Figs. 7, 10, 12, 13).

- 19 -

Plaintiffs reply: “The independent claims require that ‘a cyclic shift value associated with
the first orthogonal sequence is different from a cyclic shift value associated with the second
orthogonal sequence,’ but BlackBerry argues that as [sic] each cyclic shift value is unique to a
particular orthogonal sequence.” Dkt. No. 91 at 3 (emphasis Plaintiffs’).
At the January 25, 2017 hearing, Defendants urged that the specification discloses three
distinct embodiments that correspond to Figures 7–10, 11–12, and 13–14, respectively, and
Defendants argued that only the second embodiment is claimed. In response, Plaintiffs
acknowledged that the specification sets forth no embodiment with partial overlap of cyclic shift
values, but Plaintiffs maintained that the claims contain no limitation that would preclude partial
overlap.
(2) Analysis
The specification discloses that using different cyclic shift values can reduce loss of
performance that would otherwise be caused by inter-code interference:
Thus, in FIG. 7, ZC sequences are cyclically shifted by one every time the Walsh
sequence number increases by one. That is, in the present embodiment, the
minimum difference is 1 between the cyclic shift values of ZC sequences
associated with adjacent Walsh sequences. In other words, in FIG. 7, adjacent
Walsh sequences are associated with ZC sequences, cyclic shift values of which
are different, and used for two-dimensional spreading for response signals.
Therefore, even when inter-code interference between Walsh sequences occurs
due to the collapse of orthogonality between the Walsh sequences, it is possible to
suppress inter-code interference by spreading using ZC sequences. For example,
referring to FIG. 7, a response signal that is transmitted using PUCCH #4 is
subjected to two-dimensional spreading using ZC #1 and W #1, and a response
signal that is transmitted using PUCCH #7 is subjected to two-dimensional
spreading using ZC #2 and W #2. Therefore, even when inter-code interference
between W #1 and W #2 occurs due to the collapse of orthogonality between W #1
and W #2, it is possible to suppress the inter-code interference by a slight
difference between the cyclic shift values of ZC #1 and ZC #2.
On the other hand, in FIG. 7, like ZC #1 and ZC #2, ZC sequences, cyclic shift
values of which are adjacent, that is, ZC sequences, between which the cyclic
shift value difference is “1,” are used. By this means, orthogonality between ZC
- 20 -

sequences may collapse, which causes inter-code interference between the ZC
sequences. However, in FIG. 7, ZC sequences, between which a cyclic shift value
difference is “1,” are associated with different Walsh sequences and used for twodimensional spreading of response signals. Therefore, even when inter-code
interference between ZC sequences occurs due to the collapse of orthogonality
between the ZC sequences, it is possible to suppress inter-code interference by
spreading using Walsh sequences. For example, referring to FIG. 7, a response
signal that is transmitted using PUCCH #4 is subjected to two-dimensional
spreading using ZC #1 and W #1, and a response signal that is transmitted using
PUCCH #7 is subjected to two-dimensional spreading using ZC #2 and W #2.
Therefore, even when inter-code interference between ZC #1 and ZC #2 occurs, it
is possible to suppress inter-code interference by the difference between the
sequences of W #1 and W #2.
Thus, the present embodiment absorbs the collapse of orthogonality on the Walsh
axis (i.e. inter-code interference between Walsh sequences), on the cyclic shift
axis, and absorbs the collapse of orthogonality on the cyclic shift axis (i.e. intercode interference between ZC sequences), on the Walsh axis. In other words, the
present embodiment compensates inter-code interference between Walsh
sequences caused by the collapse of orthogonality between the Walsh sequences,
by the spreading gain of ZC sequence, and compensates inter-code interference
between ZC sequences caused by the collapse of orthogonality between the ZC
sequences, by the spreading gain of Walsh sequence. Therefore, according to the
present embodiment, it is possible to minimize degradation of the separation
performance of code-multiplexed response signals.
’792 Patent at 9:1–57 (emphasis added).
Claim 4 of the ’792 Patent, for example, recites (emphasis added):
4. A radio communication apparatus comprising:
a spreading unit configured to spread an ACK or NACK with an
orthogonal sequence, which is one of plural orthogonal sequences, and with a
sequence defined by a cyclic shift value, which is one of plural cyclic shift values
and which is associated with the orthogonal sequence; and
a transmitting unit configured to transmit the ACK or NACK,
wherein:
each of the plural orthogonal sequences is expressed as [W0,
W1, W2, W3];
the plural orthogonal sequences include a first orthogonal
sequence and a second orthogonal sequence, wherein [W0,
W1] of the first orthogonal sequence and [W0, W1] of the
second orthogonal sequence are not orthogonal, and [W2,
W3] of the first orthogonal sequence and [W2, W3] of the
second orthogonal sequence are not orthogonal; and

- 21 -

a cyclic shift value associated with the first orthogonal
sequence is different from a cyclic shift value associated
with the second orthogonal sequence.
The claims do not preclude an orthogonal sequence from having more than one cyclic
shift value associated with it. For example, dependent Claim 8 recites (emphasis added):
8. The radio communication apparatus according to claim 4, wherein:
the plural cyclic shift values include a plurality of first cyclic shift values
and a plurality of second cyclic shift values that are different from the plurality of
first cyclic shift values; and
the first orthogonal sequence is associated with the plurality of first cyclic
shift values, and the second orthogonal sequence is associated with the plurality
of second cyclic shift values.
Defendants’ proposal of “cannot be the same as” would mean that in above-reproduced
Claim 4, for example, a cyclic shift value associated with the first orthogonal sequence cannot be
the same as any cyclic shift value associated with the second orthogonal sequence.
Defendants have not demonstrated anything in the claim language that would preclude
partial overlap between cyclic shift values associated with the first orthogonal sequence and
cyclic shift values associated with the second orthogonal sequence. Likewise, no disclaimer to
such effect is evident in the specification. See Thorner v. Sony Computer Entm’t Am. LLC, 669
F.3d 1362, 1366–67 (Fed. Cir. 2012) (“It is . . . not enough that the only embodiments, or all of
the embodiments, contain a particular limitation. We do not read limitations from the
specification into claims; we do not redefine words. Only the patentee can do that. To constitute
disclaimer, there must be a clear and unmistakable disclaimer.”); see also Liebel-Flarsheim Co.
v. Medrad, Inc., 358 F.3d 898, 908 (Fed. Cir. 2004) (“The fact that a patent asserts that an
invention achieves several objectives does not require that each of the claims be construed as
limited to structures that are capable of achieving all of the objectives.”).

- 22 -

As to the prosecution history cited by Defendants, which appears in the file history of the
parent United States Patent Application No. 13/165,538 (which issued as United States Patent
No. 8,179,947), the patentee argued as follows regarding the “Kwak” reference, United States
Patent No. 7,929,415:
. . . Kwak et al. describes using 6 ZC sequences and W-H-codes having a length 2
to obtain “a maximum of 12 two-dimensional orthogonal codes,” meaning that
Kwak et al. is associating each of the 6 cyclic shift values with each of the 2
orthogonal (W-H) codes to obtain 12 different codes, as in a round-robin
arrangement. (See, Col. Col. [sic] 7, lines 4–15 of Kwak et al.) Kwak et al.
nowhere teaches or suggests associating a different cyclic shift value with each of
two of the plural orthogonal sequences or associating each of adjacent cyclic shift
values with a different orthogonal sequence, as in various exemplary
embodiments of the present invention. In fact, according to various embodiments
of the present invention, if 6 ZC sequences and 2 W-H codes are used as in the
example of Kwak et al., a maximum number of two-dimensional codes obtainable
would be 6, not 12 as in Kwak et al.
Dkt. No. 90, Ex. 16, Sept. 28, 2011 Response at 5 (POWIRE62_0000101) (emphasis in original).
The patentee thus distinguished Kwak as disclosing complete overlap. That is, the
patentee distinguished Kwak because Kwak associated all of the same cyclic shift values (the 6
ZC sequences) with both of the two orthogonal sequences (the 2 W-H codes). Plaintiffs here are
not proposing that such complete overlap is within the scope of the claims at issue. Instead,
Plaintiffs persuasively argue that there is no limitation precluding partial overlap. See Omega
Eng’g Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003) (“As a basic principle of claim
interpretation, prosecution disclaimer promotes the public notice function of the intrinsic
evidence and protects the public’s reliance on definitive statements made during prosecution.”)
(emphasis added).
The Court therefore hereby expressly rejects Defendants’ proposed construction. No
further construction is necessary. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568
(Fed. Cir. 1997) (“Claim construction is a matter of resolution of disputed meanings and
- 23 -

technical scope, to clarify and when necessary to explain what the patentee covered by the
claims, for use in the determination of infringement. It is not an obligatory exercise in
redundancy.”); see also O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351,
1362 (Fed. Cir. 2008) (“[D]istrict courts are not (and should not be) required to construe every
limitation present in a patent’s asserted claims.”); Finjan, Inc. v. Secure Computing Corp., 626
F.3d 1197, 1207 (Fed. Cir. 2010) (“Unlike O2 Micro, where the court failed to resolve the
parties’ quarrel, the district court rejected Defendants’ construction.”); ActiveVideo Networks,
Inc. v. Verizon Commcn’s, Inc., 694 F.3d 1312, 1326 (Fed. Cir. 2012); Summit 6, LLC v.
Samsung Elecs. Co., Ltd., 802 F.3d 1283, 1291 (Fed. Cir. 2015).
The Court accordingly hereby construes “[is/are] different from” to have its plain
meaning.
VI. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 7,783,949
The ’949 Patent, titled “Method and Apparatus for Controlling a Transport Format of a
Retransmission,” issued on August 24, 2010, and bears an earliest priority date of April 1, 2004.
The Abstract of the ’919 Patent states:
The present invention relates to a method for transmitting data packets from a
mobile terminal to a base station using a hybrid automatic repeat request protocol
and soft combining of received data. Further, the present invention provides a
base station and a mobile terminal both adapted to perform the respective method
steps. Moreover, a communication system is provided which comprises at least
one base station and at least one mobile terminal. The present invention also
provides a computer-readable medium for storing instructions that, when executed
on a processor, cause the processor to transmit data packets from a mobile
terminal to a base station using a hybrid automatic repeat request protocol and
soft combining of received data. In order to restrict the interference caused by
retransmissions, the present invention suggests controlling the amount of
information in the retransmissions and thus the transmission power required for
their transmission by TFCS restriction.

- 24 -

G. “transmitting unit . . .” (’949 Pat., Cl. 18) and “receiving unit . . .” (’949 Pat., Cls. 18,
21)
“transmitting unit that transmits an uplink data packet via the uplink data channel from
the transmitting apparatus”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

This term is subject to § 112(6)

This claim term should not be governed by
35 U.S.C. § 112(6). But, should the Court
determine that this claim term should be
governed by 35 U.S.C. § 112(6), then PanOptis
identifies that one or more of the following
structure(s), act(s), or materials correspond to
this claim term:
Structure: Fig. 1 (103), col. 3:13, 17:27–31,
17:33–35, 18:27–36.

Function: transmits an uplink data packet via
the uplink data channel from the transmitting
apparatus
Structure: a computing device, as described at
col. 18:27–36, implementing the algorithm
described in FIG. 4, 5, 11, in connection with
steps 1201, 1208, 1209, 1211, and 1212 of
FIG. 12 and user equipment 103 of FIG. 1, and
at 3:13–14, 4:27–46, 15:57–65, 16:5–13,
17:27–30, 17:47–52, 18:8–13

Function: “transmits an uplink data packet via
the uplink data channel from the transmitting
apparatus”

- 25 -

“receiving unit that receives a feedback message via an acknowledgment channel from the
receiving apparatus, wherein the feedback message indicates whether the uplink data
packet has been successfully received by the receiving apparatus”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

This term is subject to § 112(6)

This claim term should not be governed by
35 U.S.C. § 112(6). But, should the Court
determine that this claim term should be
governed by 35 U.S.C. § 112(6), then PanOptis
identifies that one or more of the following
structure(s), act(s), or materials correspond to
this claim term:

Function: receives a feedback message via an
acknowledgment channel from the receiving
apparatus6
Structure: a computing device, as described at
col. 18:27–36, implementing the algorithm
described in FIG. 4, 5, 11, in connection with
steps 1207 and 1210 of FIG. 12 and user
equipment 103 of FIG. 1, and at 3:13–14,
4:27–46, 15:65–16:4, 17:47–18:7.

Structure: Fig. 1 (103), col. 3:13, 17:27–31,
17:33–35, 18:27–36.
Function: “receives a feedback message via an
acknowledgment channel from the receiving
apparatus”

Dkt. No. 85, Ex. B at 4–5 & 6–7; Dkt. No. 88 at 16–17; Dkt. No. 90 at 22; Dkt. No. 96, Ex. A
at 4–6.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (35 U.S.C. § 112, ¶ 6 does not
apply).”

Defendants previously proposed: “receives a feedback message via an acknowledgment
channel from the receiving apparatus, wherein the feedback message indicates whether the
uplink data packet has been successfully received by the receiving apparatus.” See Dkt. No. 96,
Ex. A at 5 n.2.
6

- 26 -

(1) The Parties’ Positions
Plaintiffs argue that Defendants cannot overcome the presumption that these non-means
terms are not governed by 35 U.S.C. § 112, ¶ 6. Dkt. No. 88 at 17.
Defendants respond that “[a]s with ‘transmission unit’ and ‘reception unit’ in the ’919
patent, the terms ‘transmitting unit’ and ‘receiving unit’ merely use a nonce term with functional
descriptions . . . .” Dkt. No. 90 at 23. Defendants further argue: “Even if ‘transmitting unit’ and
‘receiving unit’ are understood to connote a generic ‘transmitter’ and a ‘receiver,’ those terms do
not recite structure sufficient for performing the specific claimed functions at issue, i.e.,
‘transmit[ting] an uplink data packet via the uplink data channel from the transmitting apparatus’
and ‘receiv[ing] a feedback message via an acknowledgment channel from the receiving
apparatus.’” Id. at 24.
Plaintiffs reply that “[a]s with the similar terms in the other patents, [Defendants’]
attempts to distinguish a transmitting/receiving unit from a transmitter/receiver elevates form
over substance.” Dkt. No. 91 at 7.
At the January 25, 2017 hearing, the parties presented no separate oral argument as to
these terms apart from their arguments as to the “a determination unit . . .” term addressed above.
(2) Analysis
For substantially the same reasons set forth above as to “a determination unit . . .” in the
’919 Patent, the Court finds that the present disputed terms are not governed by 35 U.S.C. § 112,
¶ 6.
The Court accordingly hereby expressly rejects Defendants’ argument that the present
disputed terms are means-plus-function terms governed by 35 U.S.C. § 112, ¶ 6. Defendants

- 27 -

have not proposed any constructions other than pursuant to 35 U.S.C. § 112, ¶ 6. The Court
therefore concludes that no further construction is required.
The Court thus hereby construes the “transmitting unit . . .” and “receiving unit . . .”
terms to have their plain meaning.
H. “scheduling related control channel” (’949 Pat., Cls. 1, 18, 21), “acknowledg[e]ment
channel” (’949 Pat., Cls. 1, 18, 21), and “data packet[s]” (’949 Pat., Cls. 1, 9, 18, 21)
“scheduling related control channel”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

an information stream on top of the MAC layer
for transferring scheduling related control
information

“acknowledg[e]ment channel”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

an information stream on top of the MAC layer
for transferring acknowledgments

“data packet[s]”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

an information unit identified by a label at
layer 3 of the OSI reference model

Dkt. No. 85, Ex. B at 1; Dkt. No. 88 at 18; Dkt. No. 90 at 14, 16 & 17; Dkt. No. 96, Ex. A at 1
& 2.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary constructions:
- 28 -

Term

Preliminary Construction

“scheduling related control channel”

“logical channel for scheduling-related control
information”

“acknowledg[e]ment channel”

“logical channel for acknowledgements”

“data packet[s]”

“group of bits that convey source address,
destination address, error checking, and a data
payload”

At the January 25, 2017 hearing, the parties agreed to the Court’s preliminary
constructions.
The Court therefore hereby construes the disputed terms as set forth in the following
chart:
Term

Construction

“scheduling related control channel”

“logical channel for scheduling-related
control information”

“acknowledg[e]ment channel”

“logical channel for acknowledgements”

“data packet[s]”

“group of bits that convey source address,
destination address, error checking, and a
data payload”

I. “transport format for a retransmission” (’949 Pat., Cls. 1, 18)
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

a transport format sufficient but not more than
required for successfully decoding the uplink
data packet using a retransmission

Dkt. No. 85, Ex. B at 4; Dkt. No. 88 at 21; Dkt. No. 90 at 18; Dkt. No. 96, Ex. A at 1.

- 29 -

Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (Reject Defendants’ proposal of
‘sufficient but not more than required’).”
Plaintiffs argued that Defendants’ proposal “reads out some of the disclosed
embodiments.” Dkt. No. 88 at 22. Further, Plaintiffs argued, Defendants’ proposal “imports
unnecessary ambiguity into the claims regarding how one would measure that which is
‘sufficient but not more than required for’ successful decoding.” Id. Instead, Plaintiffs argued,
the specification demonstrates that “one of ordinary skill would understand that a ‘transport
format for a retransmission’ is simply a restricted transport format, specifying the modulation
scheme, code rate, etc., to be used in retransmission.” Id. at 23. Plaintiffs also argued claim
differentiation as to dependent Claim 7. Id. at 25.
Defendants responded that their proposed construction “reflects the alleged invention and
the patent’s disparagement of prior art methods.” Dkt. No. 90 at 18. Defendants submitted that
the patent “teaches precisely what restriction must be indicated to the UE in order to achieve the
alleged benefits of the invention.” Id. at 19. Defendants argued that “the ’949 patent expressly
describes how to determine a transport format that is sufficient, but not more than required.” Id.
at 21 (citing ’949 Patent at 16:29–34).
Plaintiffs replied that “there is no disavowal justifying BlackBerry’s proposed departure
from plain meaning.” Dkt. No. 91 at 7.
At the January 25, 2017 hearing, Plaintiffs reiterated that Defendants’ proposed
construction would inappropriately demand a level of precision that is not feasible, as
demonstrated by the evidence discussed in the parties’ briefs. Plaintiffs highlighted the opinion

- 30 -

of Plaintiffs’ expert that the disputed term “transport format for a retransmission” refers to a
“restricted” transport format. See Dkt. No. 88, Ex. 6, Dec. 7, 2016 Gitlin Decl. at ¶ 86.
In response, Defendants presented an alternative proposed construction: “transport format
restricted relative to the original transmission for a retransmission.”
Plaintiffs replied that Defendants’ alternative proposal was needlessly wordy.
Nonetheless, Plaintiffs stated that if the Court finds that construction is appropriate, then
Plaintiffs had no substantive objection to Defendants’ alternative proposal.
On balance, the Court finds that construction is appropriate so as to reflect the substantive
agreement reached by the parties at the January 25, 2017 hearing.
The Court therefore hereby construes “transport format for a retransmission” to mean
“transport format restricted relative to the original transmission for a retransmission.”
VII. CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 6,865,191
The ’191 Patent, titled “System and Method for Sending Multimedia Attachments to Text
Messages in Radiocommunication Systems,” issued on March 8, 2005, and bears an earliest
priority date of August 12, 1999. The Abstract of the ’191 Patent states:
Methods and systems for transmitting attachments to text messages without
turning terminals into e-mail clients are described. When an attachment is to be
transmitted, an address of an attachment server is appended to the text message.
The text message is then forwarded to the intended recipient, e.g., via an SMS
server, while the attachment is sent to the attachment server. Upon receipt of the
text message, the recipient can then download the attachment from the attachment
server using the address included in the text message.
The Court previously construed terms in the ’191 Patent in ZTE.

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J. “a processor . . .” (’191 Pat., Cl. 17)
“a processor for associating a text message with an attachment”
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning.

This term is subject to 112(6)
Function: “associating a text message with an
attachment”7

This claim term should not be governed by
35 U.S.C. § 112(6). But, should the Court
Structure: a processor that performs one or
determine that this claim term should be
more of the algorithms disclosed in col. 5:43–
governed by 35 U.S.C. § 112(6), then PanOptis 48
identifies that one or more of the following
structure(s), act(s), or materials correspond to
this claim term:
Structure: Figs. 5 (180), col. 5:33–36, 5:43–48
Function: “associating a text message with an
attachment”
Dkt. No. 85, Ex. B at 19; Dkt. No. 88 at 25–26; Dkt. No. 90 at 25; id. at 26 n.16; Dkt. No. 96,
Ex. A at 36.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (35 U.S.C. § 112, ¶ 6 does not
apply).”
(1) The Parties’ Positions
Plaintiffs argue that Defendants cannot overcome the presumption that this non-means
term is not governed by 35 U.S.C. § 112, ¶ 6. Dkt. No. 88 at 26. Plaintiffs urge that “[a]

Defendants previously proposed: “associating a text message with an attachment, the text
message being addressed to a receiving terminal having a phone number associated with it, the
addressing being based on the phone number of the receiving terminal, and for adding
information to the text message that identifies a server.” Dkt. No. 85, Ex. B at 19.
7

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‘processor’ is the name of a specific structure or class of structures known to one of skill in the
art at the time the ’191 patent was filed.” Id.
Defendants respond that “the ‘processor’ term of the ’191 patent is defined only
according to the function it performs, and does not connote structure,” and “while claim 17
recites the function performed by the processor—i.e., ‘associating a text message with an
attachment’—it does not describe how the processor performs that function.” Dkt. No. 90 at 26.
Plaintiffs reply that surrounding claim language and the specification demonstrate that
the disputed term is structural. Dkt. No. 91 at 9.
(2) Analysis
Legal principles regarding 35 U.S.C. § 112, ¶ 6 are set forth above as to the
“a determination unit . . .” term in the ’919 Patent.
Claim 17 of the ’191 Patent recites (emphasis added):
17. A mobile station comprising:
a processor for associating a text message with an attachment, the text
message being addressed to a receiving terminal having a phone number
associated with it, the addressing being based on the phone number of the
receiving terminal, and for adding information to the text message that identifies a
server; and
a transceiver for sending the attachment to a server and for transmitting
the text message to the receiving terminal’s phone number based address.
Here, “processor” is not a “nonce” term but rather connotes a class of structures. In
reaching this conclusion, the Court applies substantially the same analysis that the Court applied
in SyncPoint Imaging, LLC v. Nintendo of America Inc., No. 2:15-CV-247, 2016 WL 55118, at
*18–*21 (E.D. Tex. Jan. 5, 2016). In particular, the Court hereby expressly rejects Defendants’
arguments that the “processor” term fails to recite sufficient structure because the claim “does
not describe how the processor performs that function” and that “mere disclosure of a generic
data processor cannot denote sufficient structure with respect to the functions performed.” Dkt.
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No. 90 at 26 & 27; see Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014)
(“where a claim is not drafted in means-plus-function format, the reasoning in the Aristocrat line
of cases does not automatically apply, and an algorithm is therefore not necessarily required”)
(discussing Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328 (Fed. Cir.
2008)). Furthermore, whether recitation of a “processor for” performing a function is governed
by § 112, ¶ 6 depends on whether the stated objectives and operation of the processor connote
sufficiently definite structure. Global Equity Management (SA) Pty. Ltd. v. Expedia, Inc., No.
2:16-cv-95, 2016 WL 7416132, at *29 (E.D. Tex. Dec. 22, 2016); Uniloc USA, Inc. v. Autodesk,
Inc., No. 2:15-cv-1187, 2016 WL 3647977, at *20 (E.D. Tex. July 7, 2016); See, e.g., Finjan,
Inc. v. Proofpoint, Inc., No. 13-cv-05808-HSG, 2015 U.S. Dist. LEXIS 162504, at *31–*32,
2015 WL 7770208 (N.D. Cal. Dec. 3, 2015) (“processor [for performing a function]” found to be
sufficiently definite structure because the claim described how the processor functions with the
other claim components); Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1319–21
(Fed. Cir. 2004) (“circuit [for performing a function]” – similar to “processor [for performing a
function]” – found to be sufficiently definite structure because the claim recited the “objectives
and operations” of the circuit).
Here, the term “processor” as used in Claim 17 of the ’191 Patent refers to a recognized
class of structures. See Dkt. No. 88, Ex. 8, Hargrave’s Communications Dictionary 410 (2002)
(“In a computer, the functional unit that interprets and executes instructions. A processor
consists of at least an instruction control unit and an arithmetic unit.”) (POWIRE62_0020260);
see also id., Merriam-Webster Dictionary 394 (2005) (“CPU”) (POWIRE62_0020294); id.,
McGraw-Hill Dictionary of Scientific and Technical Terms 1676 (6th ed. 2003) (“1. A device
that performs one or many functions, usually a central processing unit. Also known as engine. 2.

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A program that transforms some input into some output, such as an assembler, compiler, or
linkage editor.) (POWIRE62_0020270).
Finally, although Defendants have cited St. Isidore Research, LLC v. Comerica Inc.,
No. 2:15-CV-1390, 2016 WL 4988246, at *14 (E.D. Tex. Sept. 19, 2016), in which the Court
found certain “processor configured” terms to be means-plus-function terms, St. Isidore itself
noted that “[t]he Court has typically found ‘processor’ to connote sufficient structure to avoid the
application of § 112, ¶ 6 in different circumstances.” Id., at *15. Here, Claim 17 of the ’191
Patent (reproduced above) sets forth detail regarding the operation of the “processor.” See, e.g.,
Linear Tech., 379 F.3d at 1320. Surrounding claim language recites more than merely
“associating a text message with an attachment,” such as “adding information to the text message
that identifies a server” and “sending the attachment to a server.” This context imparts additional
structural significance and understandability to the “processor.” Also of note, “[t]he amount of
detail required to be included in claims depends on the particular invention and the prior art.”
Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1385 (Fed. Cir. 2011) (citation and
internal quotation marks omitted).
On balance, the Court hereby expressly rejects Defendants’ argument that the present
disputed term is a means-plus-function term governed by 35 U.S.C. § 112, ¶ 6. Defendants have
not proposed any construction other than pursuant to 35 U.S.C. § 112, ¶ 6. The Court therefore
concludes that no further construction is required.
The Court thus hereby construes the “a processor . . .” term to have its plain meaning.

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K. “sending the attachment to a server and . . . transmitting the text message to the
receiving terminal’s phone number based address” (’191 Pat., Cl. 17)
Plaintiffs’ Proposed Construction

Defendants’ Proposed Construction

No construction necessary. PanOptis proposes
that the term be construed in accordance with
its plain and ordinary meaning. See also ZTE
CC Order, at 36–44 (holding each term “has its
plain and ordinary meaning, and does not need
further construction.”).

routing the attachment to a server using a first
communications protocol, and . . . routing the
text message to a receiving terminal using a
different communications protocol based on
the receiving terminal’s phone number
Alternatively:
routing the attachment to a server using a
first transport mechanism, and . . . routing the
text message to a receiving terminal using a
different transport mechanism based on the
receiving terminal’s phone number

Dkt. No. 85, Ex. B at 20; Dkt. No. 88 at 28; Dkt. No. 90 at 28; id. at 30 n.19; Dkt. No. 96, Ex. A
at 36–37.
Shortly before the start of the January 25, 2017 hearing, the Court provided the parties
with the following preliminary construction: “Plain meaning (Reject Defendants’ proposal of
requiring ‘different communications protocol[s]’ or ‘different transport mechanism[s]’).”
(1) The Parties’ Positions
Plaintiffs argue that “BlackBerry’s proposed construction improperly imports limitations
into the claim and unnecessarily exchanges words.” Dkt. No. 88 at 28. In particular, Plaintiffs
argue that “Claim 17 does not require use of a particular protocol, much less two different
protocols as BlackBerry’s proposed construction would insert.” Id. at 29.
Defendants respond that their proposal “reflects the express teaching in the specification,
that the claimed system transmits text messages using a first transport protocol, such as SMS
[(Short Message Service)], and sends attachments using a second protocol, such as WAP
[(Wireless Access Protocol)].” Dkt. No. 90 at 28. Further, Defendants argue: “[I]n the ZTE

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case, the dispute centered over whether the claims require two separate transmissions (rather than
merely the use of two communication protocols), and whether the text message must actually
reach the receiving terminal. See ZTE Order at 42–43. The Court has not had the opportunity to
consider and rule on the issues presented by the parties in this case.” Id. at 29.
Plaintiffs reply: “Blackberry erroneously attempts to read in limitations from the
specification to support its construction, contrary to the plain language of the claims and
statements in the file history.” Dkt. No. 91 at 10 (footnote omitted).
(2) Analysis
Claim 17 of the ’191 Patent recites, in relevant part:
17. A mobile station comprising:
...
a transceiver for sending the attachment to a server and for transmitting
the text message to the receiving terminal’s phone number based address.
In ZTE, the Court found:
[T]he Court rejects Defendants’ proposal to require the server-identifying
information be inserted into the user-readable content of the text message. As set
forth above, the Court does not understand a “text message” to be only userreadable text. And the Court does not understand the plain meaning of “adding
information to the text message” to necessarily require that the information be
inserted into the user-readable content of the message. * * *
With respect to “sending the attachment to a server” and “transmitting the text
message to the receiving terminal’s phone number based address,” the Court finds
that these limitations do not require the attachment and text message be sent from
the mobile separately or that the text message actually reach the receiving
terminal. Even if the exemplary embodiments show the attachment and text
message separately issuing from the mobile, that alone is not sufficient to read the
limitation into the claims. . . .
Further, the Court does not understand separately reciting sending and
transmitting means that they must be distinct. See, e.g., In re Kelley, 305 F.2d
909, 915–16 (C.C.P.A. 1962) (“The fact that one or more structural elements
performing more than one function are common to the mechanisms which are
recited separately in the claims does not prevent the claims from being
sufficiently supported by the disclosure.”); Intellectual Prop. Dev., Inc. v.
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UA-Columbia Cablevision of Westchester, Inc., 336 F.3d 1308,[]1320 n.9 (Fed.
Cir. 2003) (“we see no reason why, as a matter of law, one claim limitation may
not be responsive to another merely because they are located in the same physical
structure”); Powell v. Home Depot, 663 F.3d 1221, 1231–32 (Fed. Cir. 2011)
(rejecting the argument that a claim “can only be infringed by a device that has
separate structures corresponding to the distinct claim elements”). Indeed,
Claim 20, which depends from Claim 17, indicates the attachment may be
“transmitted with the text message.” ’191 Patent col.8 ll.62–65 (emphasis added).
Critically, the Court does not find the invention addresses the failings of the prior
art by sending the message and the attachment independently from the mobile.
Rather, the invention teaches that [sic] the text message and attachment reaching
the recipient via different paths.
ZTE at 42–43. The Court construed “sending the attachment to a server” and “transmitting the
text message to the receiving terminal’s phone number based address” to have their plain
meaning. Id. at 44.
The Court in ZTE thus found a requirement of “different paths.” Id. at 43. ZTE did not
involve any dispute as to whether those different paths must use “different communications
protocol[s]” or “different transport mechanism[s],” as Defendants have proposed here. Dkt.
No. 90 at 28; id. at 30 n.19.
Defendants argue that “[e]very embodiment in the ’191 patent teaches that the claimed
system transmits text messages and sends attachments using distinct protocols for transport.”
Dkt. No. 90 at 28 (citing ’191 Patent at 3:6–11, 5:20–36 & 6:15–17). No such requirement of
using distinct protocols for transport is apparent in the claim language, and Defendants have not
identified any relevant definition or disclaimer that would support Defendants’ proposal. See
Thorner, 669 F.3d 1366–67 (“It is . . . not enough that the only embodiments, or all of the
embodiments, contain a particular limitation. We do not read limitations from the specification
into claims; we do not redefine words. Only the patentee can do that. To constitute disclaimer,
there must be a clear and unmistakable disclaimer.”). On the contrary, the specification implies
that the transport mechanisms are not limited to the arrangement set forth in the preferred
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embodiment because “the present invention can also be applied where other types of equipment
originate the message, e.g., PSTNs or data networks.” ’191 Patent at 7:13–15.
The prosecution history cited by Defendants is likewise unavailing in this regard. The
patentee stated that “attachments can be processed by the terminals using the existing text
messaging protocols, such as SMS, without using an email client.” Dkt. No. 90, Ex. 17, June 30,
2004 Amendment at 6 (POWIRE62_0001633). This does not rise to the level of a definitive
statement that the claimed invention is limited to the protocols used in the preferred embodiment
or that different transport mechanisms must be used for the text message and the attachment
respectively. See Omega Eng’g, 334 F.3d at 1324 (“As a basic principle of claim interpretation,
prosecution disclaimer promotes the public notice function of the intrinsic evidence and protects
the public’s reliance on definitive statements made during prosecution.”) (emphasis added).
Also of note, Claims 4 and 12 of the ’191 Patent recite, respectively: “wherein
transmitting the text message and receiving the attachment are performed using wireless access
protocol (WAP)”; and “wherein the means for transmitting a message and for receiving the
attachment employ wireless access protocol (WAP).” Although Claims 4 and 12 do not depend
from the claim here at issue, the absence of any analogous protocol limitation in Claim 17 of the
’191 Patent is noteworthy. See Phillips, 415 F.3d at 1314 (“Other claims of the patent in
question, both asserted and unasserted, can also be valuable sources of enlightenment as to the
meaning of a claim term.”).
The Court therefore hereby expressly rejects Defendants’ proposed construction. No
further construction is necessary. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521
F.3d at 1362; Finjan, 626 F.3d at 1207; ActiveVideo, 694 F.3d at 1326; Summit 6, 802 F.3d
at 1291.

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The Court accordingly hereby construes “sending the attachment to a server and . . .
transmitting the text message to the receiving terminal’s phone number based address” to
have its plain meaning.
VIII. CONCLUSION
.
The Court adopts the constructions set forth in this opinion for the disputed terms of the
patents-in-suit.
The parties are ordered to not refer to each other’s claim construction positions in the
presence of the jury. Likewise, in the presence of the jury, the parties are ordered to refrain from
mentioning any portion of this opinion, other than the actual definitions adopted by the Court.
The Court’s reasoning in this order binds the testimony of any witnesses, and any reference to
the claim construction proceedings is limited to informing the jury of the definitions adopted by
the Court.
SIGNED this 3rd day of January, 2012.
SIGNED this 6th day of February, 2017.

____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE

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APPENDIX A
Term

Parties’ Agreement

“the response signal is mapped to the subcarrier
group”

The response signal is mapped to the
subcarrier group that comprises the
determined resource of downlink.

(’919 Patent, Claims 1, 10)
“means for querying a user of the mobile station
regarding whether the attachment is to be transmitted
with the text message”
(’191 Patent, Claim 20)

This claim term is governed by 35
U.S.C. § 112(6) and the parties identify
one or more of the following
structure(s), act(s), or materials that
correspond to this claim term:
Structure: Fig. 2 (Item 22), col. 5:4–19.
See ZTE CC Order, at 44–48.
Function: querying a user of the mobile
station regarding whether the
attachment is to be transmitted with the
text message.

Dkt. No. 85 at Ex A; Dkt. No. 96, Ex. A at 13 & 37–38.

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