Fractus, S.A. v. TCL Corp. et al

Filing 79

CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER. Signed by District Judge Rodney Gilstrap on 7/14/2021. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
FRACTUS, S.A.,
Plaintiff,
v.
TCL CORP., TCL COMMUNICATION
TECHNOLOGY HOLDINGS LTD., TCT
MOBILE WORLDWIDE, LTD., TCT
MOBILE INTERNATIONAL, LTD.,
Defendants.

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CIVIL ACTION NO. 2:20-CV-00097-JRG

CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
Before the Court is the Opening Claim Construction Brief (Dkt. No. 61) filed by Plaintiff
Fractus, S.A. (“Plaintiff” or “Fractus”).

Also before the Court is the Responsive Claim

Construction Brief (Dkt. No. 65) filed by Defendants TCL Corp., TCL Communication
Technology Holdings, Ltd., TCT Mobile Worldwide, Ltd., and TCT Mobile International, Ltd.
(“Defendants” or “TCL”) as well as Plaintiff’s reply (Dkt. No. 67). The Court held a hearing on
July 6, 2021. (Dkt. No. 75). Having considered the arguments and evidence presented by the parties
at the hearing and in their briefing, the Court now issues this Order and adopts the claim
constructions stated herein.

Table of Contents
I. BACKGROUND ....................................................................................................................... 3
II. LEGAL PRINCIPLES ........................................................................................................... 4
III. AGREED TERMS................................................................................................................. 9
IV. DISPUTED TERMS ............................................................................................................ 10
A. “multilevel structure” / “structure for the multi-band antenna” / “antenna element [having
/ with] [a / the] multiband behavior” .................................................................................. 10
B. “geometric element(s)” ....................................................................................................... 16
C. “substantially within” terms ................................................................................................ 20
D. “empty space” terms ........................................................................................................... 27
E. “level(s) of detail” / “level of structural detail” .................................................................. 31
F. “the second portion is a second level of structural detail within the first level of structural
detail” .................................................................................................................................. 34
G. “number of sides” ............................................................................................................... 37
H. “fractal type antenna” ......................................................................................................... 40
I. “substantially similar impedance level and radiation pattern,” “radio electric behavior
substantially similar,” and “substantially similar combined amount of resistance and
reactance . . . and radiation pattern” ................................................................................... 45
J. “current” terms ..................................................................................................................... 51
K. “wherein the geometric elements are arranged such that the antenna element does not
comprise a group of single band antennas that respectively operate in the at least first
and second non-overlapping frequency bands” .................................................................. 56
L. “generally identifiable” ....................................................................................................... 59
M. “at least substantial parts of said second and third portions being part of the first portion”
............................................................................................................................................ 62
N. “portions substantially overlap” .......................................................................................... 65
O. “associated with” ................................................................................................................ 67
P. “a closed figure defined by a free perimeter thereof and a projection of ones of the longest
exposed perimeters thereof to define the least number of closed figures within the region
necessary to form the generally distinguishable closed figures” ........................................ 69
V. CONCLUSION...................................................................................................................... 73

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I. BACKGROUND
Plaintiff alleges infringement of United States Patents No. 7,394,432 (“’432 Patent”),
7,397,431 (“’431 Patent”), 8,941,541 (“’541 Patent”), 8,976,069 (“’069 Patent”), 9,054,421 (“’421
Patent”), 9,240,632 (“’632 Patent”), and 9,362,617 (“’617 Patent”) (collectively, “the patents-insuit”). (Dkt. No. 61, Exs. 16–22). Plaintiff submits that its innovations relate to “creating
multiband antennas that used certain fractal antenna concepts,” and “[t]he inventions in this lawsuit
permit antennas to operate in smaller spaces at multiple frequency bands.” (Dkt. No. 61, at 1).
The ’432 Patent, for example, is titled “Multilevel Antenna,” issued on July 1, 2008, and
bears an earliest priority date of September 20, 1999. The Abstract of the ’432 Patent states:
Antennae in which the corresponding radiative element contains at least one
multilevel structure formed by a set of similar geometric elements (polygons or
polyhedrons) electromagnetically coupled and grouped such that in the structure of
the antenna can be identified each of the basic component elements. The design is
such that it provides two important advantages: the antenna may operate
simultaneously in several frequencies, and/or its size can be substantially reduced.
Thus, a multiband radioelectric behaviour is achieved, that is, a similar behavior
for different frequency bands.
This Court, as well as the Northern District of Texas, previously construed disputed terms
in the patents-in-suit in:
Fractus, S.A. v. Samsung Elecs. Co., et al., 6:09-CV-203, Dkt. No. 526 (E.D. Tex.
Dec. 17, 2010) (Love, J.) (“Samsung”) (attached to Plaintiff’s opening brief (Dkt.
No. 61) as Exhibit 3);
Fractus, S.A. v. ZTE Corp., et al., 2:17-CV-561, Dkt. No. 93 (E.D. Tex. Sept. 7,
2018) (Gilstrap, J.) (“ZTE”) (attached to Plaintiff’s opening brief (Dkt. No. 61) as
Exhibit 2)1; and
Fractus, S.A. v. ZTE Corp., et al., No. 3:18-CV-2838-K, Dkt. No. 159, Amended
Markman Order at 5–7 (N.D. Tex. Mar. 15, 2019) (Kinkeade, J.) (“ZTE (N.D.
Tex.)”) (attached to Defendants’ response brief (Dkt. No. 65) as Exhibit I).
1

The Court also construed terms in other patents held by Plaintiff in Fractus, S.A. v. AT&T
Mobility LLC, 2:18-CV-00135-JRG, 2019 WL 1641357, at *28 (E.D. Tex. Apr. 16, 2019)
(“AT&T”).
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The parties submit that the specifications of the patents-in-suit are “virtually identical,” and
for ease of reference the parties refer to the specification of the ’432 Patent throughout their
briefing. (See Dkt. No. 61, at 1 n.1; see also Dkt. No. 65 at 3).
II. LEGAL PRINCIPLES
It is understood that “[a] claim in a patent provides the metes and bounds of the right which
the patent confers on the patentee to exclude others from making, using or selling the protected
invention.” Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999).
Claim construction is 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 background science or the meaning of
a term in the relevant art during the relevant time period.” Teva Pharm. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831, 841 (2015) (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 Markman, 517 U.S.
370).
A.

Claim Construction
To ascertain the meaning of claims, courts look to three primary sources: the claims, the

specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must
contain a written description of the invention that enables one of ordinary skill in the art to make
and use the invention. Id. A patent’s claims must be read in view of the specification, of which
they are a part. Id. For claim construction purposes, the description may act as a sort of dictionary,
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which explains the invention and may define or otherwise limited the scope of terms used in the
claims. Id. “One purpose for examining the specification is to determine if the patentee has limited
the scope of the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
Nonetheless, it is the claims—not the specification—that set forth the limits of the
patentee’s invention. Otherwise, there would be no need for claims. SRI Int’l v. Matsushita Elec.
Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
lexicographer, but any special definition given to a word must be clearly set forth in the
specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992).
Although the specification may indicate that certain embodiments are preferred, particular
embodiments appearing in the specification will not be read into the claims when the claim
language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
34 F.3d 1048, 1054 (Fed. Cir. 1994).
This Court’s claim construction analysis is substantially guided by the Federal Circuit’s
decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips,
the court set forth several guideposts that courts should follow when construing claims. In
particular, the court reiterated that “the claims of a patent define the invention to which the patentee
is entitled the right to exclude.” Id. at 1312 (quoting Innova/Pure Water, Inc. v. Safari Water
Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To that end, the words used in a claim
are generally given their ordinary and customary meaning. Id. The ordinary and customary
meaning of a claim term “is the meaning that the term would have to a person of ordinary skill in
the art in question at the time of the invention, i.e., as of the effective filing date of the patent
application.” Id. at 1313. This principle of patent law flows naturally from the recognition that

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inventors are usually persons who are skilled in the field of the invention and that patents are
addressed to, and intended to be read by, others skilled in the particular art. Id.
Phillips further made clear that “the person of ordinary skill in the art is deemed to read
the claim term not only in the context of the particular claim in which the disputed term appears,
but in the context of the entire patent, including the specification.” Id. Although the claims
themselves may provide guidance as to the meaning of particular terms, those terms are part of “a
fully integrated written instrument.” Id. at 1315 (quoting Markman, 52 F.3d at 978). Thus, the
Phillips court emphasized the specification as being the primary basis for construing the claims.
Id. at 1314–17. As the Supreme Court stated long ago, “in case of doubt or ambiguity it is proper
in all cases to refer back to the descriptive portions of the specification to aid in solving the doubt
or in ascertaining the true intent and meaning of the language employed in the claims.” Bates v.
Coe, 98 U.S. 31, 38 (1878). In addressing the role of the specification, the Phillips court quoted
with approval its earlier observations from Renishaw PLC v. Marposs Societa’ per Azioni, 158
F.3d 1243, 1250 (Fed. Cir. 1998):
Ultimately, the interpretation to be given a term can only be determined and
confirmed with a full understanding of what the inventors actually invented and
intended to envelop with the claim. The construction that stays true to the claim
language and most naturally aligns with the patent’s description of the invention
will be, in the end, the correct construction.
Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important role the specification
plays in the claim construction process.
The prosecution history also continues to play an important role in claim interpretation.
Like the specification, the prosecution history helps to demonstrate how the inventor and the
United States Patent and Trademark Office (“PTO”) understood the patent. Id. at 1317. However,
since the file history “represents an ongoing negotiation between the PTO and the applicant,” it

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may lack the clarity of the specification and thus be less useful in claim construction proceedings.
Id. Nevertheless, the prosecution history is intrinsic evidence that is relevant to the determination
of how the inventor understood the invention and whether the inventor limited the invention during
prosecution by narrowing the scope of the claims. Id.; see Microsoft Corp. v. Multi-Tech Sys.,
Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (noting that “a patentee’s statements during
prosecution, whether relied on by the examiner or not, are relevant to claim interpretation”).
Phillips rejected any claim construction approach that sacrificed the intrinsic record in
favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court
eschewed the suggestion made in Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
dictionaries or otherwise) before resorting to the specification for certain limited purposes.
Phillips, 415 F.3d at 1319–24. According to Phillips, reliance on dictionary definitions at the
expense of the specification had the effect of “focus[ing] the inquiry on the abstract meaning of
words rather than on the meaning of claim terms within the context of the patent.” Id. at 1321.
Phillips emphasized that the patent system is based on the proposition that the claims cover only
the invented subject matter. Id.
Phillips does not preclude all uses of dictionaries in claim construction proceedings.
Instead, the Federal Circuit assigned dictionaries a role subordinate to the intrinsic record. In doing
so, the court emphasized that claim construction issues are not resolved by any magic formula.
The court did not impose any particular sequence of steps for a court to follow when it considers
disputed claim language. Id. at 1323–25. Rather, Phillips held that a court must attach the
appropriate weight to the intrinsic sources offered in support of a proposed claim construction,
bearing in mind the general rule that the claims measure the scope of the patent grant.

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“[P]rior orders in related cases do not bar the Court from conducting additional
construction in order to refine earlier claim constructions.” TQP Dev., LLC v. Intuit Inc., No. 2:12CV-180-WCB, 2014 WL 2810016, at *6 (E.D. Tex. June 20, 2014) (Bryson, J., sitting by
designation). In general, however, prior claim construction proceedings involving the same
patents-in-suit are “entitled to reasoned deference under the broad principals of stare decisis and
the goals articulated by the Supreme Court in Markman, even though stare decisis may not be
applicable per se.” Maurice Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL
1751779, at *4 (E.D. Tex. June 21, 2006) (Davis, J.); see TQP, 2014 WL 2810016, at *6
(“[P]revious claim constructions in cases involving the same patent are entitled to substantial
weight, and the Court has determined that it will not depart from those constructions absent a
strong reason for doing so.”); see also Teva, 135 S. Ct. at 839–40 (“prior cases will sometimes be
binding because of issue preclusion and sometimes will serve as persuasive authority”) (citation
omitted); Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1329 (Fed. Cir. 2008) (noting “the
importance of uniformity in the treatment of a given patent”) (quoting Markman v. Westview
Instruments, Inc., 517 U.S. 370, 390 (1996)).
B.

Definiteness
The Supreme Court of the United States has “read [35 U.S.C.] § 112, ¶ 2 to require that a

patent’s claims, viewed in light of the specification and prosecution history, inform those skilled
in the art about the scope of the invention with reasonable certainty.” Nautilus, Inc. v. Biosig
Instruments, Inc., 572 U.S. 898, 910, 134 S. Ct. 2120, 2129 (2014). “A determination of claim
indefiniteness is a legal conclusion that is drawn from the court’s performance of its duty as the
construer of patent claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed.
Cir. 2005) (citations and internal quotation marks omitted), abrogated on other grounds by

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Nautilus, 572 U.S. 898.

The party asserting that a claim term is indefinite must prove

indefiniteness by clear and convincing evidence. Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d
1370, 1377 (Fed. Cir. 2017).
III. AGREED TERMS
In their March 5, 2021 P.R. 4-3 Joint Claim Construction Statement (Dkt. No. 56, Ex. A)
and in their briefing (Dkt. No. 61, Ex. 23), the parties submit the following agreements:
Term
“frequency band(s)”

Agreed Construction
“a range of frequencies”

’432 Patent, Claims 1, 6
’431 Patent, Claims 1, 14, 30
’541 Patent, Claims 17, 23
’069 Patent, Claim 32
’421 Patent, Claims 1, 11
“overall structure of the conductive radiating Plain and ordinary meaning (not “any portion
element”
of the antenna that radiates in one or more of
the claimed frequency band(s)”)
’431 Patent, Claim 1
’432 Patent, Claim 1
’541 Patent, Claim 17
“overall structure”
’431 Patent, Claims 14, 30
’432 Patent, Claim 6
Based on the parties’ agreement, the Court hereby adopts these agreed constructions.

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IV. DISPUTED TERMS
A. “multilevel structure” / “structure for the multi-band antenna” / “antenna element
[having / with] [a / the] multiband behavior”
“multilevel structure”
(’431 Patent, Claims 1, 14, 30;
’432 Patent, Claims 1, 6;
’541 Patent, Claim 17)
“structure for the multi-band antenna”
(’617 Patent, Claims 17, 19;
’632 Patent, Claim 17)
“antenna element [having / with] [a / the] multiband behavior”
(’069 Patent, Claims 32, 46;
’421 Patent, Claims 1, 11)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

A structure for an antenna useable 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 distinguishable 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.”

Indefinite
Alternatively:
“a structure for an antenna useable at
multiple frequency bands (proportional to the
number of levels of detail) 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 at least 75% of the polygons
(polyhedrons) are clearly visible and
individually distinguishable and at least 75%
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.”

(Dkt. No. 56, Ex. B, at 1 & 7; Dkt. No. 61, at 2; Dkt. No. 71, Ex. A, at 1, 3–4, 6, 8–9, 11, 14, 17,
21 & 25).

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(1) The Parties’ Positions
Plaintiff submits that Defendants’ expert, Dr. Chris Bartone, had no difficulty interpreting
these disputed terms in the past, which Plaintiff argues undercuts Defendants’ indefiniteness
argument in the present case. (Dkt. No. 61, at 3). Plaintiff urges: “That two experts might apply
those claims differently is why there are trials over the issue of infringement; it is not an indicia of
indefiniteness.” (Id. (citations omitted)). As to Defendants’ alternative proposal, Plaintiff submits
that Samsung rejected a similar proposal of “proportional to the number of levels of detail” and
that ZTE rejected a similar proposal of “at least 75%.” (Id. at 4).
Defendants respond that “[t]he term ‘multilevel structure’ was coined by the inventors, but
the record does not sufficiently describe what the term purports to cover.” (Dkt. No. 65, at 2).
Defendants argue that “whether an antenna satisfies these attributes depends on how its geometry
is viewed, an issue on which the common written description (‘the Written Description’) of this
legacy of patents fails to provide guidance.” (Id.). Defendants also note that the defendants in
ZTE did not argue indefiniteness, and “neither of the prior rulings compels, or even foreshadows,
a finding of definiteness here.” (Id., at 4). Further, Defendants argue that “the number of
frequency bands at which the multilevel antenna is usable is proportional to the number of levels
of detail.” (Id., at 5). Finally, Defendants argue that: “Fractus’ proposed construction states that
‘most’ (i.e., greater than 50%) of the polygons or polyhedrons have this attribute. In arriving at
this lower threshold, Fractus tellingly ignores highly germane portions of the inventors’
specification.” (Id., at 6).
Plaintiff replies:
[T]he question is not whether two experts would view infringement differently – if
that were so, there would never be a trial over infringement. Rather, the question
is whether the claim, read in light of the specification and prosecution history, fails
to inform those skilled in the art of its scope with reasonable certainty. And the
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specification here provides ample guidance on how to identify the claimed
multilevel structures.
(Dkt. No. 67, at 1 (citations omitted)). Plaintiff also argues that “Samsung squarely rejected TCL’s
exact same indefiniteness argument in language indicating the claims are definite under any test
. . . .”

(Id.).

Further, Plaintiff argues that “[t]his Court should decline to impose TCL’s

‘proportionality’ limitation just like the Samsung Court did,” and “the ZTE Court performed an
extensive refutation of TCL’s proposed ‘75%’ limitation.” (Id., at 2 (citations omitted)).
At the July 6, 2021 hearing, Defendants reiterated that this is a coined term that lacks any
known meaning in the art and, therefore, the entire specification should be given weight when
construing this term. Plaintiff argued that Defendants’ arguments demonstrate a battle of the
experts regarding infringement, not indefiniteness.
(2) Analysis
“The parties agree that the[se] three disputed terms should be construed identically.” (Dkt.
No. 65, at 2).
The Background and Summary of the Invention section of the specification states:
Multilevel antennae solve the operational limitations of fractal and multitriangular
antennae. Their geometry is much more flexible, rich and varied, allowing
operation of the antenna from two to many more bands, as well as providing a
greater versatility as regards diagrams, band positions and impedance levels, to
name a few examples. Although they are not fractal, multilevel antennae are
characterised in that they comprise a number of elements which may be
distinguished in the overall structure. Precisely because they clearly show several
levels of detail (that of the overall structure and that of the individual elements
which make it up), antennae provide a multiband behavior and/or a small size. The
origin of their name also lies in said property.
’432 Patent at 2:31–43.
Plaintiff proposes the Court’s prior construction. Specifically, Samsung and ZTE construed
“multilevel structure” and “structure for the multi-band antenna” to mean “a structure for an

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antenna useable 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 distinguishable 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.” See Samsung at 7–19; see also ZTE at 8–17.
Samsung rejected an indefiniteness argument:
The MLV patents provide a person of ordinary skill in the art . . . with the objective
guidelines necessary to identify a multilevel structure in an antenna. Thus, even if
Defendants are correct that there are different ways of drawing polygons on an
antenna, so long as a multilevel structure can be identified within a particular
antenna based on the objective guidelines provided by the MLV specifications and
claims, a multilevel structure exists. Nonetheless, when and if the parties[’] experts
disagree whether a multilevel structure actually exists in an allegedly infringing
antenna, the jury will be charged with determining whether the patents are
infringed. In other words, this determination is a question of infringement, not
definiteness.
No. 6:09-CV-203, Dkt. No. 611, Dec. 17, 2010 Report and Recommendation at 8–9 (E.D. Tex.
Feb. 8, 2011) (Love, J.) (attached to Plaintiff’s opening brief (Dkt. No. 61) as Exhibit 7).
The Court decided Samsung prior to Nautilus, 572 U.S. 898, and in ZTE there was no
indefiniteness challenge. See ZTE at 8. Defendants point out that “there can be no serious question
that Nautilus changed the law of indefiniteness.” See Dow Chem. Co. v. Nova Chems. Corp.
(Canada), 803 F.3d 620, 630 (Fed. Cir. 2015) (discussing 572 U.S. 898).
Nonetheless, the analysis in Samsung and ZTE demonstrates that the term “multilevel
structure” “inform[s] those skilled in the art about the scope of the invention with reasonable
certainty.” Nautilus, 572 U.S. at 910. The opinion of Defendants’ expert in this regard is
unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶ 59). Contrary to
Defendants’ arguments, the analysis does not hinge on the “unpredictable vagaries of any one
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person’s opinion.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014).
Defendants appear to suggest that the intrinsic record does not lend to a finding of definiteness,
but the burden is not on Plaintiff to establish definiteness. Rather, it is incumbent on Defendants
to prove indefiniteness by clear and convincing evidence. Here, Defendants simply have not met
that burden. See Sonix, 844 F.3d at 1377.
As to Defendants’ alternative proposed construction, ZTE considered and rejected
arguments that the proposed “at least 75%” limitations are compelled by the Summary of the
Invention, specification, prosecution history, or reexamination. ZTE at 13–17. The Court rejects
Defendants’ proposals of “at least 75%” for the same reasons set forth in ZTE. See id.
As to Defendants’ proposal of “proportional to the number of levels of detail,” the
Background and Summary of the Invention section of the specification discloses:
A particular property of multilevel antennae is that their radioelectric behavior can
be similar in several frequency bands. Antenna input parameters (impedance and
radiation diagram) remain similar for several frequency bands (that is, the antenna
has the same level of adaptation or standing wave relationship in each different
band), and often the antenna presents almost identical radiation diagrams at
different frequencies. This is due precisely to the multilevel structure of the
antenna, that is, to the fact that it remains possible to identify in the antenna the
majority of basic elements (same type polygons or polyhedrons) which make it up.
The number of frequency bands is proportional to the number of scales or sizes of
the polygonal elements or similar sets in which they are grouped contained in the
geometry of the main radiating element.
***
In specialized literature it is already possible to find descriptions of certain antennae
designs which allow to cover a few bands. However, in these designs the multiband
behavior is achieved by grouping several single band antennae or by incorporating
reactive elements in the antennae (concentrated elements as inductors or capacitors
or their integrated versions such as posts or notches) which force the apparition of
new resonance frequencies. Multilevel antennae on the contrary base their behavior
on their particular geometry, offering a greater flexibility to the antenna designer
as to the number of bands (proportional to the number of levels of detail), position,
relative spacing and width, and thereby offer better and more varied characteristics
for the final product.
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’432 Patent at 3:1–15 & 3:45–57 (emphasis added).
This feature of being “proportional to the number of levels of detail,” however, should not
be imported into the claims. Samsung rejected such a requirement, and also dependent Claim 15
of the ’431 Patent expressly recites “a number of operating bands of the handset is proportional to
the number of levels within said multilevel structure.” See Phillips, 415 F.3d at 1314 (“Differences
among claims can also be a useful guide in understanding the meaning of particular claim terms.”);
see also id. at 1314–15. Finally, as to the patentee’s similar statement to the European Patent
Office (“the number of bandwidths is proportional to the number of detail levels”), Defendants do
not show that this statement justifies Defendants’ proposed limitation any more than the abovediscussed similar statement in the specification. (See Dkt. No. 61, Ex. 10, Nov. 15, 2001 Reply,
at 2 (FRACTCL3970232)).
The Court therefore adopts the Samsung and ZTE construction. Any remaining dispute
presents factual issues regarding infringement rather than any legal question for claim
construction. See Acumed LLC v. Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007) (“[A] sound
claim construction need not always purge every shred of ambiguity. The resolution of some linedrawing problems . . . is properly left to the trier of fact.”) (citing PPG Indus. v. Guardian Indus.
Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) (“after the court has defined the claim with whatever
specificity and precision is warranted by the language of the claim and the evidence bearing on the
proper construction, the task of determining whether the construed claim reads on the accused
product is for the finder of fact”)); see also Eon Corp. IP Holdings LLC v. Silver Spring Networks,
Inc., 815 F.3d 1314, 1318–19 (Fed. Cir. 2016) (citing Acumed and PPG).
The Court therefore hereby construes “multilevel structure,” “structure for the multiband antenna,” and “antenna element [having / with] [a / the] multiband behavior” to mean
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“a structure for an antenna useable 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 distinguishable 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.”
B. “geometric element(s)”
“geometric element(s)”
(’431 Patent, Claims 1, 14, 30;
’432 Patent, Claims 1, 6;
’069 Patent, Claims 32, 46;
’421 Patent, Claims 1, 5–7, 10;
’541 Patent, Claims 17;
’617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“a closed plane figure bounded by straight “polygon(s) or polyhedron(s)”
sides, further including circles and ellipses,
where a portion of a circle or ellipse is counted Polygon:
as one side”
“a closed plane figure bounded by straight
lines or closed plane bound [sic, bounded] by
a circle or an ellipse”
Polyhedron:
“a closed solid figure bounded by
polygons”

(Dkt. No. 56, Ex. B, at 7; Dkt. No. 61, at 5; Dkt. No. 71, Ex. A, at 1–2; Dkt. No. 71, Ex. A, at 5,
6–7, 9–10, 11–12, 14–15, 17–18 & 25–26; see id., at 19–20).

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(1) The Parties’ Positions
Plaintiff argues that “[b]oth the Samsung and ZTE courts were correct to conclude that a
polygon can include both straight sides and a circle/ellipse.” (Dkt. No. 61, at 6). Plaintiff also
argues that Defendants’ expert “provides this Court with no analysis that should cause it to
reconsider the previous constructions of these terms.” (Id., at 7).
Defendants respond that “TCL’s proposed construction ties the claims to the depiction of
the invention.” (Dkt. No. 65, at 7). Defendants also argue that Plaintiff’s proposed construction
“does not account for polyhedrons as being a ‘geometric element,’” “[t]he general understanding
of ‘polygon’ is a planar figure defined by straight lines,” and “the notion of counting a portion of
a circle or an ellipse as one side is incorrect . . . and . . . unnecessarily adds confusion . . . .” (Id.,
at 7–8).
Plaintiff replies that “[t]he ZTE Court did not provide a separate definition of polyhedron,
and none is needed here,” and “the real dispute here is over the meaning of a polygon.” (Dkt. No.
65, at 2). Plaintiff also argues that Samsung and ZTE “were also correct in recognizing that a
portion of a circle or an ellipse can count as one side” of a polygon, and “the experts and jury were
able to apply [this] successfully in the Samsung trial.” (Id., at 3).
At the July 6, 2021 hearing, Plaintiff argued for example that three-dimensional antennas
may have straight-sided shapes projected onto curved structures, thereby becoming shapes that
include curved sides. Defendants argued that the specification contains no support for “hybrid”
polygons, and Defendants noted that polygons with increasing numbers of sides can begin to
appear curved.
(2) Analysis
The Background and Summary of the Invention section of the specification states:

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The present invention consists of an antenna whose radiating element is
characterised by its geometrical shape, which basically comprises several polygons
or polyhedrons of the same type.
ʼ432 Patent at 2:44–47; see id. at 4:51–55. The specification further discloses that one of the “main
characteristic[s]” of a multilevel antenna is a “multilevel geometry comprising polygon or
polyhedron of the same class.” Id. at 3:30–33.
Samsung construed “geometric elements” as “polygons or polyhedrons.” Samsung at 21–
23. Samsung initially construed “polygon” to mean “a closed plane figure bounded by straight
lines, further including circles and ellipses.” Id. at 21. The parties in Samsung agreed that
“polyhedron” means “a closed solid figure bounded by polygons.” Samsung at 21.
ZTE construed “geometric elements” and “polygon” to have the same construction: “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.” ZTE at 31 & 34. ZTE rejected a proposal to
construe “geometric elements” and “polygon” to mean “a closed plane figure bounded by straight
lines or closed plane bound by a circle or an ellipse.” Id. at 28. ZTE found that the specification,
as well as certain claims of ancestor patents, refer to “hybrid shapes with both curved and straight
sides.” Id. at 33; see id. at 31–33. For example, as noted in ZTE, Figure 7.8 “includes cylinders
with curved and flat surfaces.” Id. at 32; see ’432 Patent at Fig. 7.
Defendants respond that “this figure shows a collection of polyhedrons (not polygons),”
and Defendants also submit that “those polyhedrons are composed of entire circles (not planar
figures defined by both straight lines and a portion of a circle or ellipse).” Dkt. No. 65 at 8.
Regardless of how Figure 7.8 is interpreted, however, Samsung and ZTE relied on
additional evidence. For example, Samsung explained:
The parties have cited various technical and general dictionaries to support their
constructions. See PL.’S BR. at 17; DEF. RESP. at 15–16. All of the dictionaries
- 18 -

support a finding that the independent term “polygon” is best described by
Defendants’ construction, “a closed plane figure bounded by straight lines.” The
Court notes that Plaintiff’s dictionary citations are to “curvilinear polygons,” which
allow for the possibility of curved sides as opposed to the strict requirement of
straight line segments. See PL.’S EXHIBITS 13, 14. However, the dictionaries also
demonstrate that if the inventors of the MLV patents intended to claim curvilinear
polygons, they would have used the technical term. Indeed, nothing before the
Court establishes that a person of ordinary skill in the art would read “polygons” to
include “curvilinear polygons.”
On the other hand, the MLV specifications specifically identify circles or ellipses
as a special limiting case of polygons. ’868 [Patent]2 at 2:32–37 (“[t]he present
invention consists of an antenna . . . compris[ing] for example, triangles . . . or even
circles and ellipses as a limiting case of a polygon with a large number of sides.”);
id. at 4:42–48 (“[t]he present invention relates to an antenna . . . that is formed by
gathering several polygon or polyhedron of the same type (for example, triangles,
. . . even circles or ellipses as special limiting cases of a polygon with a large number
of sides.”)). Additionally, the inventors of the MLV patents explicitly claimed
embodiments allowing some sides of “polygons” formed with portions of circles
and ellipses. See e.g. ’208 [Patent]3 at 10:17–19 (“4. The multi-band antenna as set
forth in claim 1, wherein at least some polygons have perimeter regions comprising
portions of circles or ellipses). As such, the Court construes “polygon” as, “a closed
plane figure bounded by straight lines, further including circles and ellipses.”
Samsung at 20–21; see ’432 Patent at 2:47–50 (“circles and ellipses as a limiting case of a polygon
with a large number of sides”).
Also, when rejecting an indefiniteness argument in Samsung, the Court noted that the
patents “include claims explaining that the portion of a polygon consisting of a portion of a circle
or ellipse is to be counted as one side of the polygon,” and a person of ordinary skill in the art
“could understand that when counting the sides of a polygon, a ‘curved side’ consisting of a portion
of a circle or ellipse should be counted as one side.” No. 6:09-CV-203, Dkt. No. 611, Report and

2

United States Patent No. 7,015,868, one of the patents at issue in Samsung, is an ancestor of the
present patents-in-suit.
Samsung noted that “[t]he ’432 [Patent] is a continuation of the ’208 [Patent], which in turn, is a
continuation of the ’868 [Patent].” Samsung at 5.
3

- 19 -

Recommendation at 10–11 (E.D. Tex. Feb. 8, 2011) (Love, J.) (attached to Plaintiff’s opening brief
(Dkt. No. 61) as Exhibit 7).
Later in the same case, the Court further clarified:
[T]he term ‘polygon’ may include a circle, ellipse or figures having sides consisting
of portions of circles or ellipses and straight sides, i.e. hybrid structures, wherein
each portion of a circle or ellipse is counted as one side.
No. 6:09-CV-203, Dkt. No. 901, Report and Recommendation at 6 (E.D. Tex. May 2, 2011) (Love,
J.) (attached to Plaintiff’s opening brief (Dkt. No. 61) as Exhibit 6).
The opinions of Defendants’ expert to the contrary are unpersuasive. (See Dkt. No. 61, Ex.
4, Mar. 5, 2021 Bartone Decl., at ¶¶ 61–65).
The Court therefore hereby construes “geometric element(s)” to mean “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.”
C. “substantially within” terms
“said second and third portions being located substantially within the first portion”
(’432 Patent, Claim 1)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“the second and third portions have an area that Indefinite
substantially overlaps an area of the first
portion, where the portions differ in size or Alternatively:
configuration”
“second [and third] portion[s] being
significantly inside or enclosed by the first
portion, where the first portion, the second
portion, and the third portion differ in size or
configuration”

- 20 -

“second portion [being] located substantially within the first portion”
(’431 Patent, Claim 1;
’632 Patent, Claim 17;
’617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“the second portion has an area that Indefinite
substantially overlaps an area of the first
portion, where the portions differ in size or Alternatively:
configuration”
“second portion being significantly inside
or enclosed by the first portion, where the first
portion and the second portion differ in size or
configuration”
“third portion located substantially within the first portion”
(’632 Patent, Claim 17;
’617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“the third portion has an area that substantially Indefinite
overlaps an area of the first portion, where the
portions differ in size or configuration”
Alternatively:
“third portion being significantly inside or
enclosed by the first portion, where the first
portion and the third portion differ in size or
configuration”

(Dkt. No. 56, Ex. B, at 9; Dkt. No. 61, at 7; Dkt. No. 71, Ex. A, at 2, 7, 21–22 & 26).
(1) The Parties’ Positions
Plaintiff argues that “TCL’s . . . indefiniteness argument is belied by the fact that this Court
was previously able to construe these terms [in ZTE] (and they were applied successfully in the
Samsung trial).” (Dkt. No. 61, at 8). Plaintiff submits, as to “TCL’s alternate construction for
these terms, TCL presses the same argument Defendants lost in ZTE.” (Id.). Plaintiff also argues
that “‘substantially within’ refers to the existence of substantial ‘overlap’ between the portions,”

- 21 -

“TCL cannot demonstrate – apart from conclusory assertions by its expert – that a person of skill
in the art could not identify this ‘overlap,’” and “[t]here is no need for a strict numerical boundary
for the degree of overlap.” (Id. at 9).
Defendants respond that “[t]he disputed terms are indefinite because they include a term
of degree—‘substantially’—but the record fails to provide any objective standard for the term,”
and “Fractus does not contend that the record includes an objective anchor for these terms.” (Dkt.
No. 65, at 8–9). Alternatively, Defendants submit that their proposal that “within” means “inside
or enclosed by” is consistent with the ordinary meaning of the term, and Defendants contend that
the patentee did not give “within” a special definition. (Id., at 10). Defendants argue that “Fractus’
proposal to construe ‘within’ to mean ‘has an area that overlaps an area of another portion’ also
runs afoul of the canon of claim construction that different terms should be construed to mean
different things.” (Id., at 11).
Plaintiff replies that in recent years, including in AT&T, “courts have continually
recognized the definiteness of ‘substantially’ claim terms when appropriate.” (Dkt. No. 67, at 3).
Plaintiff also submits that “the ZTE Court found that F[r]actus’s consistent use of ‘overlapping’
during reexamination was intrinsic evidence that trumped dictionaries, especially considering that
the overall term ‘multilevel’ was a term coined by the inventors.” Id. (citation omitted).
At the July 6, 2021 hearing, Plaintiff submitted that an antenna can be inside or enclosed
by another antenna while still being independent in its operation. Plaintiff submitted that the
patents-in-suit disclaim using a group of independent antennas. As to the word “substantially,”
Plaintiff urged that mathematical precision is not required. Defendants argued that these terms
were not part of the original specification and lack support.

- 22 -

(2) Analysis
The specification discloses:
In specialized literature it is already possible to find descriptions of certain antennae
designs which allow to cover a few bands. However, in these designs the multiband
behavior is achieved by grouping several single band antennae or by incorporating
reactive elements in the antennae (concentrated elements as inductors or capacitors
or their integrated versions such as posts or notches) which force the apparition of
new resonance frequencies. Multilevel antennae on the contrary base their
behavior on their particular geometry, offering a greater flexibility to the antenna
designer as to the number of bands (proportional to the number of levels of detail),
position, relative spacing and width, and thereby offer better and more varied
characteristics for the final product.
’432 Patent at 3:45–49 (emphasis added).
ZTE found that “substantially within” refers to having overlapping areas. See ZTE at 43–
45. The defendants in Samsung and ZTE did not assert indefiniteness, and Defendants in the
present case emphasize the abrogation of the “insolubly ambiguous” standard for indefiniteness,
which Nautilus replaced with a standard of reasonable clarity. See Nautilus, 572 U.S. at 910.
But the Court of Appeals for the Federal Circuit, both before and after Nautilus, has
explained that words of approximation such as “substantially” usually do not give rise to
indefiniteness. See, e.g., Exmark Mfg. Co. v. Briggs & Stratton Power Prods. Group, LLC, 879
F.3d 1332, 1345–47 (Fed. Cir. 2018) (affirming finding that “elongated and substantially straight”
was not indefinite); Tinnus Enterprises, LLC v. Telebrands Corp., 846 F.3d 1190, 1206 (Fed. Cir.
2017) (“substantially filled”); Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349, 1359 (Fed. Cir.
2012) (“This court has repeatedly confirmed that relative terms such as ‘substantially’ do not
render patent claims so unclear as to prevent a person of skill in the art from ascertaining the scope
of the claim. . . The criticized words [‘approach each other,’ ‘close to,’ ‘substantially equal,’ and
‘closely approximate’] are ubiquitous in patent claims.”) (citation and internal quotation marks
omitted); Verve LLC v. Crane Cams, Inc., 311 F.3d 1116, 1120 (Fed. Cir. 2002) (“Expressions
- 23 -

such as ‘substantially’ are used in patent documents when warranted by the nature of the invention,
in order to accommodate the minor variations that may be appropriate to secure the invention.”);
Ecolab Inc. v. Envirochem, Inc., 264 F.3d 1358, 1367 (Fed. Cir. 2001) (“like the term ‘about,’ the
term ‘substantially’ is a descriptive term commonly used in patent claims to ‘avoid a strict
numerical boundary to the specified parameter’” (quoting Pall Corp. v. Micron Separations, Inc.,
66 F.3d 1211, 1217 (Fed. Cir. 1995)).4 As to the present disputed terms, the word “substantially”
is being used in such a permissible manner, and to find otherwise might amount to finding that the
word “substantially” categorically gives rise to indefiniteness, which cannot be squared with the
above-cited authorities.
The opinions of Defendants’ expert regarding uncertainty about whether “substantially”
means “60%, 75%, 90%, 99%, or some other arbitrary and undefined number” are therefore
unpersuasive. (Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶ 65; see id. at ¶¶ 66–68). The
Berkheimer case cited by Defendants is likewise unpersuasive in light of the more directly
applicable authorities cited above. See Berkheimer v. HP Inc., 881 F.3d 1360, 1363–64 (Fed. Cir.
2018) (“minimal redundancy” found indefinite). Finally, Defendants’ repeated attempts, in the
briefing and at oral argument, to fault Plaintiff for not identifying an “objective standard” for the
challenged term are of no consequence. This line of argument both improperly shifts the burden
and misstates the legal standard for indefiniteness. Defendants have not furnished clear and
convincing evidence that “substantially,” as used in the patent, lacks a reasonably certain meaning
to a skilled artisan. Accordingly, the Court finds that this term is not indefinite.
The court reached a similar conclusion as to the term “radiation and impedance patterns that are
substantially similar in a plurality of the plurality of working frequency bands” in AT&T. See
Fractus, S.A. v. AT&T Mobility LLC, No. 2:18-CV-00135-JRG, 2019 WL 1641357 (E.D. Tex.
2019) (citing, e.g., Exmark). Also, Samsung rejected an indefiniteness challenge as to
“substantially similar . . . radioelectric behavior.” See Samsung at 26–27.
4

- 24 -

Finally, Defendants note that Claim 17 of the ’632 Patent recites not only “substantially
within” but also “substantially overlap” (emphasis added):
17. A multi-band antenna including:
at least one structure for the multi-band antenna useable at least three ranges
of frequencies, each of the at least three ranges of frequencies extending between
two limiting frequencies, the at least one structure being included in a portable
communication device and including at least two levels of detail, wherein one level
of detail makes up another level of detail, the at least one structure including at least
one antenna region comprising a set of closed figures bounded by the same number
of sides, the sides comprising one or more of straight lines, portions of circles and
portions of ellipses,
the at least one structure including at least three portions, a first portion
having a first geometry configured to operate at a range of frequencies of the three
ranges of frequencies, a second portion located substantially within the first portion
and having a second geometry configured to operate at a range of frequencies of
the three ranges of frequencies and a third portion located substantially within the
first portion and having a third geometry configured to operate at a range of
frequencies of the three ranges of frequencies, the second and third portions
substantially overlap with the first portion,
wherein each of the closed figures in the antenna region is directly or
proximately linked to at least one other of the closed figures such that
electromagnetic power is exchanged between the closed figures in the antenna
region either directly through at least one point of contact or through a small
separation providing coupling,
wherein for at least 75% of the closed figures, the region or area of contact
between the closed figures is less than 50% of their perimeter or area,
wherein not all of the closed figures have the same size and the perimeter
of the at least one structure has a different number of sides than the closed figures
that compose the antenna region,
wherein each of a plurality of the closed figures of the antenna region is
generally identifiable as a closed figure defined by a free perimeter thereof and a
projection of ones of the longest exposed perimeters thereof to define the least
number of closed figures within the region necessary to form the generally
distinguishable closed figures where the closed figures perimeters are
interconnected, and
wherein the multi-band antenna is configured to operate at the at least three
ranges of frequencies and wherein at least one of the at least three ranges of
frequencies is within the 800 MHz–3600 MHz frequency range.
Defendants argue that this claim demonstrates that “substantially within” means something
other than “substantially overlap,” because “[i]n the absence of any evidence to the contrary, we

- 25 -

must presume that the use of these different terms in the claims connotes different meanings.”
CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000).
But although “the use of both terms in close proximity in the same claim gives rise to an
inference that a different meaning should be assigned to each,” “it is not unknown for different
words to be used to express similar concepts, even though it may be poor drafting practice.”
Bancorp Servs., LLC v. Hartford Life Ins. Co., 359 F.3d 1367, 1373 (Fed. Cir. 2004).
As found in ZTE (cited above), the better reading of the phrase “substantially within” in
light of the intrinsic evidence is that the phrase refers to substantial overlap.
The Court therefore hereby construes these disputed terms as set forth in the following
chart:
Term

Construction

“said second and third portions being “the second and third portions have an area
located substantially within the first that substantially overlaps an area of the
portion”
first portion, where the portions differ in
size or configuration”
“second
portion
[being]
located “the second portion has an area that
substantially within the first portion”
substantially overlaps an area of the first
portion, where the portions differ in size or
configuration”
“third portion located substantially within “the third portion has an area that
the first portion”
substantially overlaps an area of the first
portion, where the portions differ in size or
configuration”

- 26 -

D. “empty space” terms
“said first[, / and], second[, and third] portions defining empty spaces in an overall
structure”
(’432 Patent, Claims 1, 6;
’431 Patent, Claim 1;
’541 Patent, Claim 17)
“plurality of geometric elements arranged to define empty spaces in the antenna
element”
(’421 Patent, Claim 1)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“said first, second and third portions defining “two or more open spaces without conductive
areas without conductive material in an overall material and which are each enclosed within
structure”
conductive material of [the first, second, and
third portions of the overall structure / antenna
element]”

(Dkt. No. 56, Ex. B, at 12; Dkt. No. 61, at 10; Dkt. No. 71, Ex. A, at 2, 12 & 18).
(1) The Parties’ Positions
Plaintiff submits that Samsung rejected an argument that the “empty spaces” at issue must
be completely enclosed by conductive material.” (Dkt. No. 61 at 10).
Defendants respond: “An empty space is ‘defin[ed]’ by portions of an antenna only if those
portions enclose the empty space. Otherwise, the space is unbounded, i.e., undefined.” (Dkt. No.
65, at 11). Further, Defendants argue that “[t]he prosecution history of the ʼ431 patent supports
TCL,” and Defendants argue that Plaintiff’s proposal “strays from the claim language,”
“improperly assumes that all embodiments of the Patents-in-Suit meet these claim elements,” and
“does not clarify the term.” (Id., at 12).
Plaintiff replies that “TCL has no specific explanation as to why the Samsung Court was
wrong when it rejected TCL’s construction.” (Dkt. No. 67, at 4 (citation omitted)). Plaintiff

- 27 -

submits that “[e]mptiness can certainly be ‘defined’ by something other than a border of
conductive material.” (Id.). Further, Plaintiff argues that “TCL selects embodiments it prefers
(e.g., Figure 1), and casts aside those that contradict it.” (Id.)
At the July 6, 2021 hearing, the parties presented no oral arguments and instead rested on
their briefing.
(2) Analysis
These terms were not presented as disputed terms in ZTE.
Samsung construed these terms to mean “said first, second and third portions defining areas
without conductive material in an overall structure,” as Plaintiff proposes in the present case. See
Samsung at 37–38. Samsung reasoned:
The MLV5 specifications demonstrate that the empty spaces exist “between the
various polygon or polyhedron elements” to force the current on a longer path. ’868
[Patent]6 at 3:5–15. The function of these empty spaces does not require them to
be completely enclosed within the polygons or polyhedrons which make up the
multilevel antenna. While Defendants are correct that some embodiments show
empty spaces completely enclosed (see id. at Figure 1), other embodiments show
unbounded empty spaces that could force the current on a longer path. (see id. at
Figures 4.4, 4.8, 6.6 and 7.4).
Id. at 37.
On one hand, the specification discloses several examples of empty spaces that are
completely surrounded by conductive material, such as shown in Figure 1 of the ’432 Patent, which
is reproduced here:

“MLV” is an abbreviation that refers to the “multilevel” family of patents held by Plaintiff,
including for example the ’432 Patent that the parties cite throughout their briefing in the present
case.
5

6

United States Patent No. 7,015,868, one of the patents at issue in Samsung, is an ancestor of the
present patents-in-suit.
- 28 -

On the other hand, the specification also discloses empty spaces that are not completely
surrounded by conductive material. As one example, Figure 4.8 of the ’432 Patent is reproduced
here:

On balance, the Court adopts the Samsung construction and rejects Defendants’ argument
that the empty spaces must be “enclosed within conductive material.” The prosecution history in
which the patentee cited Figure 1 (reproduced above) does not compel otherwise. (See Dkt.
No. 65, Ex. D, Amendment and Response to Office Action, at 10). No narrow definition or
disclaimer is apparent. (See id.). Indeed, Defendants acknowledge that the patentee referred to
Figure 1 as “only one example of many within the figures of the application.” (Id.). The opinions
of Defendants’ expert are also unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone Decl.,
at ¶ 75).

- 29 -

The claim language reciting “defined” and “in” does not compel otherwise. Defendants
cite authority that “a claim construction analysis must begin and remain centered on the claim
language itself.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111,
1116 (Fed. Cir. 2004). Yet, any fair viewing of above-reproduced Figure 4.8, for example, would
have no difficulty identifying “empty spaces” “defin[ed]” by the “overall structure” as recited in
the disputed terms. Defendants’ argument that Figure 4.8 and similar figures could be merely
“unclaimed embodiments” is likewise rejected. (Dkt. No. 65, at 12 (citing Helmsderfer v. Bobrick
Washroom Equip., Inc., 527 F.3d 1379, 1383 (Fed. Cir. 2008))).
Finally, Defendants argue that Plaintiff’s proposed construction fails to sufficiently clarify
the scope of the claims, arguing that “including the key words ‘defining’ and ‘in’” in the
construction would “impermissibly invite going to a jury with a claim construction dispute.” (Dkt.
No. 65, at 12–13 (citing O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351,
1361 (Fed. Cir. 2008))). On balance, however, adopting Plaintiff’s proposed construction and
expressly rejecting Defendants’ proposed interpretation is sufficient to resolve the claim
construction dispute, and any remaining dispute presents infringement issues for the finder of fact
rather than any legal question for claim construction. See Acumed, 483 F.3d at 806 (“[A] sound
claim construction need not always purge every shred of ambiguity. The resolution of some linedrawing problems . . . is properly left to the trier of fact.”) (citing PPG, 156 F.3d at 1355 (“after
the court has defined the claim with whatever specificity and precision is warranted by the
language of the claim and the evidence bearing on the proper construction, the task of determining
whether the construed claim reads on the accused product is for the finder of fact”)); see also Eon,
815 F.3d at 1318–19 (citing Acumed and PPG).

- 30 -

The Court therefore hereby construes “said first[, / and], second[, and third] portions
defining empty spaces in an overall structure” and “plurality of geometric elements arranged
to define empty spaces in the antenna element” to mean “said first, second and third portions
defining areas without conductive material in an overall structure.”
E. “level(s) of detail” / “level of structural detail”
“level(s) of detail”
(’632 Patent, Claim 17)
“level of structural detail”
(’432 Patent, Claim 6;
’431 Patent, Claims 14, 30)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“a first level of detail that clearly shows the “a level of structure in the multilevel structure
overall structure, and a second level of detail that is clearly identifiable from another level of
that clearly shows most of the individual structural detail”
elements”

(Dkt. No. 56, Ex. B, at 18; Dkt. No. 61, at 11; Dkt. No. 71, Ex. A, at 4; Dkt. No. 71, Ex. A, at 9 &
22).
(1) The Parties’ Positions
Plaintiff submits that “TCL pursues the construction that the ZTE Court rejected,” and
“[t]he intrinsic evidence supports this Court’s prior definition.” (Dkt. No. 61, at 11).
Defendants respond that whereas “TCL’s proposed construction is a straightforward
interpretation of the claim language in the context of the specification,” Plaintiff’s proposal
“contemplates only two levels of detail” even though “the claims contemplate three or more levels
of detail,” and “Fractus’ proposed construction introduces confusion in that it references ‘the

- 31 -

individual elements,’ but ‘individual elements’ are not earlier recited in the claims.” (Dkt. No. 65,
at 13).
Plaintiff replies that “TCL’s construction ignores the claim language and the specification’s
teachings that the first level of detail is the overall structure and the second level of detail is made
up of individual elements.” (Dkt. No. 67, at 4–5 (citations omitted)).
At the July 6, 2021 hearing, the parties presented no oral arguments and instead rested on
their briefing.
(2) Analysis
ZTE construed the “level of structural” detail terms in Claim 6 of the ’432 Patent and
Claims 14 and 30 of the ’431 Patent. Specifically, ZTE construed “first level of structural detail”
to mean “detail that clearly shows the overall structure,” construed “second level of structural
detail” to mean “detail that clearly shows most of the individual elements,” and construed “two
levels of detail[]” to mean “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.” ZTE at 23–28.
The Background and Summary of the Invention section of the specification states:
Multilevel antennae solve the operational limitations of fractal and multitriangular
antennae. Their geometry is much more flexible, rich and varied, allowing
operation of the antenna from two to many more bands, as well as providing a
greater versatility as regards diagrams, band positions and impedance levels, to
name a few examples. Although they are not fractal, multilevel antennae are
characterised in that they comprise a number of elements which may be
distinguished in the overall structure. Precisely because they clearly show several
levels of detail (that of the overall structure and that of the individual elements
which make it up), antennae provide a multiband behavior and/or a small size. The
origin of their name also lies in said property.
***
Its designation as multilevel antenna is precisely due to the fact that in the body of
the antenna can be identified at least two levels of detail: that of the overall structure

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and that of the majority of the elements (polygons or polyhedrons) which make it
up.
***
Thus, the main characteristic of multilevel antennae are the following:
A multilevel geometry comprising polygon or polyhedron of the same class,
electromagnetically coupled and grouped to form a larger structure. In multilevel
geometry most of these elements are clearly visible as their area of contact,
intersection or interconnection (if these exist) with[] other elements is always less
than 50% of their perimeter.
The radioelectric behavior resulting from the geometry: multilevel antennae can
present a multiband behavior (identical or similar for several frequency bands)
and/or operate at a reduced frequency, which allows to reduce their size.
’432 Patent at 2:30–44, 2:60–64 & 3:30–44 (emphasis added); see id. at 5:35–38 (referring to
“multilevel structures ([Figures] 4.1–4.14) formed by parallelepipeds (squares, rectangles, rhombi
. . .)”; “the component elements are always individually identifiable (at least most of them are)”).
Defendants do not justify departing from the ZTE construction for the “level of detail”
terms in Claim 6 of the ’432 Patent and Claims 14 and 30 of the ’431 Patent or for the “at least
two levels of detail” term in Claim 17 of the ’632 Patent. See ZTE at 23–28. The opinions of
Defendants’ expert in this regard are unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone
Decl., at ¶ 82).
Finally, Defendants argue that the phrase “individual elements” in the ZTE construction
should not be introduced into the construction because “individual elements” lacks antecedent
basis, but Defendants do not show any such requirement for antecedent basis. Instead, the phrase
“individual elements” is readily understandable in the context of the specification of the patentsin-suit.
The Court therefore hereby construes these disputed terms as set forth in the following
chart:
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Term

Construction

“first level of structural detail”

“detail that clearly shows the overall
structure”

“second level of structural detail”

“detail that clearly shows most of the
individual elements”

“two levels of detail”

“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”

“level of detail”

No construction necessary apart from the
Court’s construction of other terms.

F. “the second portion is a second level of structural detail within the first level of structural
detail”
“the second portion is a second level of structural detail within the first level of structural
detail”
(’431 Patent, Claims 14, 30;
’432 Patent, Claim 6)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary.

“the second portion is a second level of
structural detail inside or enclosed by the first
level of structural detail, where a level of
structural detail is clearly identifiable from
another level of structural detail”

(Dkt. No. 56, Ex. B, at 13; Dkt. No. 61, at 12; Dkt. No. 71, Ex. A, at 5 & 10).
(1) The Parties’ Positions
Plaintiff submits that Defendants’ argument in the present case “is simply a repeat of the
previous defendant’s unsuccessful argument” in ZTE. (Dkt. No. 61, at 13). Plaintiff argues: “A
critical distinction of these patents, as discussed, is the overlap between the second level of detail

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and the first. Yet TCL’s construction would include additional designs because it encompasses
single band antennas that are pushed together, but where the portions are not overlapping.” (Id.)
Defendants respond that they propose a construction consistent with their proposals as to
“level of structural detail” and “within” (addressed above), and Defendants argue that “Fractus’
characterization of the Examiner’s reasons for allowance is imprecise.” (Dkt. No. 65, at 14).
Plaintiff replies that “[a]s this Court has already recognized [in ZTE], the ‘within’ term was
added to distinguish the Johnson prior art expressly because the portions in Johnson did not
substantially overlap – meaning that these patents do require that the portions substantially
overlap.” (Dkt. No. 67, at 5 (citing ZTE at 48)).
At the July 6, 2021 hearing, the parties presented no oral arguments and instead rested on
their briefing.
(2) Analysis
The Background and Summary of the Invention section of the specification provides
context for the present disputed term by stating:
In specialized literature it is already possible to find descriptions of certain antennae
designs which allow to cover a few bands. However, in these designs the multiband
behavior is achieved by grouping several single band antennae or by incorporating
reactive elements in the antennae (concentrated elements as inductors or capacitors
or their integrated versions such as posts or notches) which force the apparition of
new resonance frequencies. Multilevel antennae on the contrary base their behavior
on their particular geometry, offering a greater flexibility to the antenna designer
as to the number of bands (proportional to the number of levels of detail), position,
relative spacing and width, and thereby offer better and more varied characteristics
for the final product.
’432 Patent at 3:45–57.
ZTE analyzed the same term in the same claims at issue here, and Defendants here propose
the same construction proposed by the defendants in ZTE. ZTE at 46–49. In ZTE, the Court found:

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Given the context of the claim language, the Court finds that the term “within”
should be given its plain and ordinary meaning. The Court has construed the terms
“second level of structural detail” and “first level of structural detail.” Thus, the
claim language will read as follows: “the second portion is a second [detail that
clearly shows most of the individual elements] within the first [detail that clearly
shows the overall structure].” As discussed, Plaintiff’s construction confuses the
claim language by completely dropping the two “level of structural detail” terms.
Defendants’ construction appears to read on a distinguished and disclaimed
embodiment of multiple single-band antennas pushed together.
When considered in the context of the construction for the two “level of structural
detail” terms, the disputed phrase is easily understandable by a jury, and should be
given its plain and ordinary meaning. As discussed above, a person of ordinary
skill would understand that “within” requires the area of the individual elements of
the second portion to completely overlap with an area of the first portion. Finally,
in reaching its conclusion, the Court has considered the extrinsic evidence
submitted by the Parties, and given it its proper weight in light of the intrinsic
evidence.
ZTE at 49. The Court also addressed the prosecution history raised again here by the parties. See
id. at 48–49. The opinions of Defendants’ expert regarding the ZTE analysis are unpersuasive.
(See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶ 76). Defendants have not met their burden
to depart from the plain and ordinary meaning. See Phillips, 415 F.3d at 1312.
The Court therefore hereby construes “the second portion is a second level of structural
detail within the first level of structural detail” to have its plain meaning (apart from the
Court’s constructions of constituent terms).

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G. “number of sides”
“number of sides”
(’432 Patent, Claim 6;
’431 Patent, Claims 14, 30;
’069 Patent, Claim 46;
’421 Patent, Claim 5;
’632 Patent, Claims 17, 19;
ʼ617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary

“number of straight sides for geometric
elements bounded by straight sides, or a large
number for geometric elements bounded by a
circle or an ellipse”

(Dkt. No. 56, Ex. B, at 14; Dkt. No. 61, at 13; Dkt. No. 71, Ex. A, at 5, 10, 16, 22–23 & 26–27).
(1) The Parties’ Positions
Plaintiff submits that Samsung and ZTE rejected the interpretation that Defendants
proposed in the present case. (Dkt. No. 61, at 13–14).
Defendants respond that “TCL’s proposed construction tracks the Written Description’s
clear guidance,” such as that “[t]he only relevant teaching states that circles and ellipses are to be
treated as a polygon ‘with a large number of sides.’” (Dkt. No. 65, at 14–15 (quoting ’432 Patent
at 2:47–49)).
Plaintiff replies that “Fractus does not seek to have a circle or ellipse count as a one-sided
polygon, but rather that a curved side of a polygon count as one side.” (Dkt. No. 67, at 5 (citations
omitted)).
At the July 6, 2021 hearing, Plaintiff submitted that this disputed term is not being used to
have any special technical meaning. Defendant emphasized disclosures in the specification

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regarding “circles and ellipses as a limiting case of a polygon with a large number of sides” (cited
below).
(2) Analysis
The Background and Summary of the Invention section of the specification states:
The present invention consists of an antenna whose radiating element is
characterised by its geometrical shape, which basically comprises several polygons
or polyhedrons of the same type. That is, it comprises for example triangles,
squares, pentagons, hexagons or even circles and ellipses as a limiting case of a
polygon with a large number of sides, as well as tetrahedra, hexahedra, prisms,
dodecahedra, etc.
ʼ432 Patent at 2:44–50.
ZTE construed the term “number of sides” to have its plain meaning, as Plaintiff proposes
in the present case, and ZTE explained:
The claim language is clear and addresses the relationship between the number of
sides of the multilevel structure and the number of sides for each of the geometric
elements. For example, Claim 14 of the ’431 Patent recites that “the perimeter of
the multilevel structure has a different number of sides than each of the geometric
elements that compose the multilevel structure.” Simply stated, the structure and
the elements do not have the same number of sides. This claim language is
unambiguous, and is easily understandable by a jury, and should be given its plain
and ordinary meaning. Finally, in reaching its conclusion, the Court has considered
the extrinsic evidence submitted by the Parties, and given it its proper weight in
light of the intrinsic evidence.
ZTE at 39. Relatedly, in Samsung the Court found:
[T]he term “polygon” may include a circle, ellipse or figures having sides
consisting of portions of circles or ellipses and straight sides, i.e. hybrid structures,
wherein each portion of a circle or ellipse is counted as one side.
No. 6:09-CV-203, Dkt. No. 901, Report and Recommendation at 6 (E.D. Tex. May 2, 2011) (Love,
J.) (attached to Plaintiff’s opening brief (Dkt. No. 61) as Exhibit 6). Also, Plaintiff emphasizes
that “Fractus does not seek to have a circle or ellipse count as a one-sided polygon, but rather that
a curved side of a polygon count as one side.” (Dkt. No. 67, at 5 (citation omitted)).

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Plaintiff’s interpretation is consistent with the above-cited analysis in ZTE and Samsung as
well as with other claims, such as Claim 3 of the ’432 Patent reciting “geometric elements” that
include “both linear and non-linear portions,” and Claim 8 of the ’421 Patent and Claim 25 of the
’069 Patent reciting an apparatus “wherein at least one of the four sides of at least one of the
geometric elements is curved.” Defendants argue that the Court should cast these claims aside in
the analysis because these claims are purportedly indefinite. This is a heavy burden for Defendants
to undertake, however, because “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,”
Phillips, 415 F.3d at 1314, and “[i]ndefiniteness must be proven by clear and convincing
evidence.” Sonix, 844 F.3d at 1377.
On balance, Defendants do not sufficiently justify setting aside the other claims cited by
Plaintiff. The authorities cited by Defendants do not demonstrate otherwise. See Trustees of
Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1367 (Fed. Cir. 2016) (“The claims are
nonsensical . . . and are thus indefinite.”); see also Multilayer Stretch Cling Film Holdings, Inc. v.
Berry Plastics Corp., 831 F.3d 1350, 1360 (Fed. Cir. 2016) (“The dependent claim tail cannot wag
the independent claim dog.”). The opinions of Defendants’ expert are likewise unpersuasive. (See
Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶ ¶¶ 77–78).
Based on all of the foregoing, Defendants do not justify departing from the analysis in ZTE,
and the Court therefore hereby construes “number of sides” to have its plain meaning.

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H. “fractal type antenna”
“fractal type antenna”
(’421 Patent, Claim 1)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“an antenna with a self-similar shape generated Indefinite
in an iterative manner on different scaling
levels”
Alternatively:
“an antenna possessing ideal fractal
geometry”

(Dkt. No. 56, Ex. B, at 15; Dkt. No. 61, at 14; Dkt. No. 71, Ex. A, at 18).
(1) The Parties’ Positions
Plaintiff argues that the patentee explained the meaning of this term during prosecution and
in the specification. (Dkt. No. 61, at 15). Plaintiff also submits that ZTE rejected a construction
that Defendants propose as an alternative in the present case. (Id.). Plaintiff proposes the ZTE
construction but suggests that “self-similar,” as opposed to “self-copying,” “is a superior
construction based on the intrinsic evidence.” (Id., at 16).
Defendants respond that “[t]his term is indefinite because the term ‘fractal’ was not
sufficiently clear to a person of ordinary skill in the art in 1999 and the modifier ‘type’ adds a
further layer of ambiguity.” (Dkt. No. 65, at 15). Defendants submit that “‘fractal’ was not
commonly understood even among the mathematical elites, much less an antenna designer.” (Id.,
at 16). Also, Defendants submit that “‘fractal’ has been understood differently by all who have
encountered it in connection with the Patents-in-Suit,” including the courts. (Id.; see id. at 15–16).
Alternatively, Defendants argue that “[t]o the extent that the disputed term is not indefinite, it
should be construed to cover only those antennas that possess ideal fractal geometry, and not, for
example, antennas based on or derived from fractal designs.” (Id., at 17).
- 40 -

Plaintiff replies that Samsung did not actually construe this term and, in any event, “[t]hat
two different Courts offered two slightly different phrasings does not make a term indefinite.”
(Dkt. No. 67, at 6). “Nor,” Plaintiff argues, “does a lack of a precise mathematical definition mean
that there was not a commonly understood definition of what constitutes a fractal.” (Id.)
At the July 6, 2021 hearing, the parties presented no oral arguments and instead rested on
their briefing.
(2) Analysis
Claim 1 of the ’421 Patent recites (emphasis added):
1. An apparatus comprising:
an antenna element having a multi-band behavior and configured to operate
in at least first and second non-overlapping frequency bands and comprising a
plurality of geometric elements arranged to define empty spaces in the antenna
element to provide at least first and second winding current paths through the
antenna element, the at least first and second winding current paths circumventing
the empty spaces and respectively corresponding to the at least first and second
non-overlapping frequency bands to provide the antenna element with the multiband behavior; and
a ground plane, the antenna element being electrically coupled to the ground
plane;
wherein the antenna element provides a substantially similar impedance
level and radiation pattern in the at least first and second non-overlapping frequency
bands;
wherein the geometric elements are arranged such that the antenna element
does not comprise a group of single band antennas that respectively operate in the
at least first and second non-overlapping frequency bands; and
wherein the antenna element is not a fractal type antenna element.
ZTE found that Plaintiff’s proposal of “self-similar shape” was “vague and potentially
confusing to a jury.” ZTE at 59. ZTE found:
The Court finds that the best indication of how a person of ordinary skill in the art
would understand the term can be found in the prosecution history of PCT
Application No. ES99/00296. To distinguish the prior art, the patentees argued that
“the antennas that are implemented do not have a fractal geometry.” The patentees
further described the prior art as including a fractal antenna. Specifically, the
patentees argued that “[i]n the case of [the prior art] we find Illustrated in figures
2, 3 and 4 exclusively the fractal known as the Sierpinski triangle, where we can
- 41 -

clearly observe that it is formed by identical triangles and that its geometry is
obtained carrying out a self-copying on a different scaling level of the basic
generating element of the structure.” Thus, the patentees described a fractal
antenna as “self-copying [(e.g., identical triangles)] on a different scaling level of
the basic generating element of the structure.” Accordingly, the Court finds that
the term “fractal type antenna” should be construed to mean “an antenna with a
self-copying shape generated in an iterative manner on different scaling levels.”
Id. (citations omitted; emphasis in ZTE).
This is consistent with the Background and Summary of the Invention section of the
specification, which explains:
From a scientific standpoint strictly fractal antennae are impossible, as fractal
objects are a mathematical abstraction which include an infinite number of
elements. It is possible to generate antennae with a form based on said fractal
objects, incorporating a finite number of iterations.
’432 Patent at 1:59–63 (also cited in ZTE at 58).
The opinions of Defendants’ expert, such as that “in 1999 there was no generally accepted
meaning for ‘fractal,’” do not compel otherwise. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone
Decl., at ¶¶ 78–80). Also, Defendants cite the statement by the Court in Samsung that “this term,
fractal, is both unclear, not precisely defined, not consistently used, and has different meanings,
depending upon when, where, and who is using it. . . . [I]t is not a reasonably descriptive term.”
Dkt. No. 65, Ex. F, May 17, 2011 Trial Tr. at 108:19–25; see id. at 108:2–109:21 (emphasizing to
the jury that the word “fractal” did not appear in any of the claims at trial in Samsung). But the
Court in ZTE took this statement into account when arriving at a construction for the term “fractal
type antenna.” ZTE at 58–59.
After the Court transferred the ZTE case to Northern District of Texas, the transferee court
modified this Court’s construction:
As a mathematical concept, the self-similarity at different scaling levels is infinite,
so no matter how many times the scaling is increased, the same pattern or shape is
repeated again and again.
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The confusion with the construction of “fractal type antenna” stems from the
practical limitations of application of this abstract mathematical concept. Because
the abstract concept includes an infinite number of self-similar shapes at an infinite
number of scaling levels, the creation of an actual physical fractal is impossible.
While one may create a fractal-like object that displays a self-similar shape at
multiple scaling levels, one cannot create a fractal object that displays a self-similar
shape at all scaling levels. Eventually the level of detail required to do this becomes
too small to practically manufacture. For this reason, there will ultimately be a
level of scale for a fractal-like object at which the object no longer displays a selfsimilar shape. Therefore, in creating a fractal-like object, the best that can
practically be created is an object having multiple fractal type iterations or, in other
words, an object with multiple but a finite number of fractal iterations at multiple
scaling levels.
The Plaintiff’s, Defendants’, and Judge Gilstrap’s constructions of “fractal type
antenna” all attempt to address the issue of defining a fractal in the context of the
practical limitations on creating a fractal-like object. The Plaintiff’s proposed
construction, which is “an antenna with a self-similar shape generated in an iterative
manner,” captures the self-similar shape requirement of a fractal, but leaves out the
requirement for this to occur on multiple scaling levels and fails to address the
practical limitation of not being able to create a real object that is a fractal. The
Defendants’ proposed construction, which is “an antenna possessing ideal fractal
geometry,” fails to address the practical limitations of creating a fractal object.
Because it is impossible to create an antenna possessing ideal fractal geometry, the
Defendants’ proposed construction does little to define anything. Judge Gilstrap’s
construction, which is “an antenna with a self-copying shape generated in an
iterative manner on different scaling levels,” is better than the Plaintiff’s and
Defendants’ proposed constructions, because it addresses the fractal property of
having self-similar shapes at different scaling levels.
The Court believes that it is not necessary to attempt to define the word “fractal” in
the construction of this phrase. The unclarity of the phrase does not stem from the
definition of “fractal.” Instead the unclarity of the phrase comes from the
application of that mathematical concept to the actual object that is claimed. A
person of ordinary skill in the art would understand these issues in the context of
the patents in suit. A person of ordinary skill in the art would also understand that
the claim’s reference to a fractal type antenna cannot be to a true fractal. Instead,
the reference to a fractal type antenna is to an antenna having multiple fractal
iterations, but it is not to a true fractal because there are only a finite number of
fractal iterations on the antenna, as opposed to a true fractal which has an infinite
number of fractal iterations. For these reasons, the Court construes “fractal type
antenna” to mean “an antenna having a shape with multiple but a finite number of
fractal iterations at different scaling levels.”

- 43 -

Fractus, S.A. v. ZTE Corp., et al., No. 3:18-CV-2838-K, Amended Markman Order at 5–7 (N.D.
Tex. Mar. 15, 2019) (Kinkeade, J.) (attached to Defendants’ response brief (Dkt. No. 65) as Exhibit
I).
Defendants argue that “‘fractal’ was not commonly understood even among the
mathematical elites, much less an antenna designer.” (Dkt. No. 65, at 16). But in ZTE, this Court
as well as the Northern District of Texas (cited and reproduced above) found reasonable clarity as
to how to apply the term “fractal” in the context of antennas, taking into account the inherent
limitations of applying a mathematical concept to the manufacturing of a real-world physical
structure. The Walter case cited by Defendants is therefore unpersuasive. See In re Walter, 698
F. App’x 1022, 1026 (Fed. Cir. Aug. 21, 2017) (finding “block-like” indefinite).
The Court therefore rejects Defendants’ indefiniteness arguments. As to the proper
construction, the Court adopts the notion of “finite” iterations as set forth in the above-reproduced
analysis of the Northern District of Texas. Nonetheless, construing the disputed term so as to
provide guidance regarding the meaning of the word “fractal” (rather than simply using the word
“fractal” in the construction) will assist the finder of fact.
The Court accordingly hereby construes “fractal type antenna” to mean “an antenna
having a finite number of self-copying shape iterations at different scaling levels.”

- 44 -

I. “substantially similar impedance level and radiation pattern,” “radio electric behavior
substantially similar,” and “substantially similar combined amount of resistance and
reactance . . . and radiation pattern”
“substantially similar impedance level and radiation pattern”
(’421 Patent, Claim 1;
ʼ069 Patent, Claim 33)
“radio electric behavior substantially similar”
(’432 Patent, Claim 1;
’431 Patent, Claim 1;
’541 Patent, Claim 17)
“substantially similar combined amount of resistance and reactance . . . and radiation
pattern”
(’617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary

Indefinite
Alternatively:
“substantially similar impedance level as
characterized by the return loss (LR) which
must be less than -14 dB or equivalent SWR
(<1.5), and substantially similar radiation
pattern”

(Dkt. No. 56, Ex. B, at 18–19; Dkt. No. 61, at 16; Dkt. No. 71, Ex. A, at 3, 8, 12, 15–16, 18–19 &
27).
(1) The Parties’ Positions
Plaintiff submits that Samsung found as to the ’431 Patent and the ’432 Patent that “a
person of ordinary skill in the art ‘would understand what it means for radiation patterns to be
similar.’” (Dkt. No. 61, at 17 (quoting Samsung at 27)). Plaintiff also submits that the Court
rejected a similar indefiniteness argument in Fractus, S.A. v. AT&T Mobility LLC, 2:18-CV-00135JRG, 2019 WL 1641357, at *28 (E.D. Tex. Apr. 16, 2019) (regarding United States Patent No.

- 45 -

7,932,870). (Dkt. No. 61, at 17). Plaintiff urges that “[t]he term ‘substantially similar’ remains
reasonably clear in the context of these patents.” (Id.). Plaintiff also argues, based on the
specification, that “‘substantially similar’ is reasonably clear in the context of impedance levels,”
and “[t]here does not need to be a specific degree of similarity for these terms to provide clarity.”
(Id., at 18–19). As to Defendants’ alternative proposed construction, Plaintiff argues that “TCL’s
proposed limitation would artificially and unnecessarily limit the potential range of applications
of the multilevel antenna.” (Id., at 19; see id., at 19–20).
Defendants respond that “[t]he disputed terms are indefinite because they include a term
of degree—‘substantially similar’—but neither the Patents-in-Suit nor their respective prosecution
histories provide objective boundaries on the term.” (Dkt. No. 65, at 17–18). Defendants also
argue that the examples disclosed in the specification do not provide sufficient guidance. (Id., at
18). Regarding impedance levels, Defendants argue that “the bulk of Fractus’ argument relates to
how impedance may be measured, which is irrelevant and undisputed.” (Id., at 19). “By analogy,”
Defendants argue, “one may understand that temperature may be measured in degrees Centigrade,
but that does not tell one how to determine if two temperatures
are ‘substantially similar.’” (Id.).
Plaintiff replies that Defendants have mischaracterized the testimony of Plaintiff’s expert,
Dr. Stuart Long, and Plaintiff submits that “Dr. Long unequivocally stated that a person of ordinary
skill in the art would know what it meant for two impedance levels to be substantially similar.”
(Dkt. No. 67, at 7). Plaintiff also argues that Defendants’ alternative proposed construction
“imports a return loss metric from certain example embodiments.” (Id.).
At the July 6, 2021 hearing, Plaintiff argued that Defendants’ alternative proposed
construction improperly imports a limitation from a preferred embodiment. Defendants argued

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that at least one objective criterion is needed to determine if the similarity is “substantial,” and the
specification discloses no such criterion. Defendants also argued that their alternative proposed
construction uses the only conceivable objective guidance in the specification.
(2) Analysis
“The parties agree that these three terms should be construed similarly.” (Dkt. No. 65, at
17).
In Samsung, the Court found:
A person of ordinary skill in the art, reading the MLV specifications, would
understand what it means for radiation patterns to be similar. See Seattle Box Co.,
Inc. v. Indus. Crating & Packing, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984) (district
court must determine whether terms of degree would be understood by a person of
ordinary skill in the art in light of the specification). Plaintiff is correct that the
MLV specifications describe that characteristics such as “omnidirectionality or
directivity” make two radiation patterns similar. See ’868 [Patent]7 at 8:37–42; id.
at 9:30–36. Moreover, Defendants own exhibits and patents demonstrate that the
term “similar radiation patterns” is a phrase used in the field of antenna design. See
DEF. REPLY MSJ at Ex. YY (“Similar radiation pattern has been obtained
throughout the operating frequency band”); (Doc. No. 459, Ex. AH at 4:14–15
“PL.’S SURREPLY MSJ”) (“[t]he graphs of FIGS. 3B and 3C, when compared with
each other, demonstrate substantially similar radiation patterns”). As such, the
Court construes “substantially similar” and “basically the same” according to their
plain and ordinary meaning.
Samsung at 27.
In AT&T, as to others patents held by Plaintiff, the Court rejected an indefiniteness
argument as to “radiation and impedance patterns that are substantially similar . . .,” finding that
“substantially” was “readily understandable” in this context. Fractus, S.A. v. AT&T Mobility LLC,
No. 2:18-CV-00135-JRG, 2019 WL 1641357, at *28 (E.D. Tex. Apr. 16, 2019) (construing terms
in United States Patent No. 7,932,870).

7

United States Patent No. 7,015,868, one of the patents at issue in Samsung, is an ancestor of the
present patents-in-suit.
- 47 -

The specification discloses, for example:
A particular property of multilevel antennae is that their radioelectric behavior can
be similar in several frequency bands. Antenna input parameters (impedance and
radiation diagram) remain similar for several frequency bands (that is, the antenna
has the same level of adaptation or standing wave relationship in each different
band), and often the antenna presents almost identical radiation diagrams at
different frequencies.
’432 Patent at 3:1–8; see ’432 Patent at Figs. 9 & 10.1–10.4; see also id. at 4:33–34 (“FIG. 10
shows radiation diagrams for the multilevel antenna of FIG. 8: horizontal and vertical planes.”) &
8:40–46.
Based on the Court’s prior analysis cited above, as well as based on review of the
arguments, evidence, and authorities cited in the present case, the Court rejects Defendants’
indefiniteness argument. See, e.g., Exmark, 879 F.3d at 1345; Tinnus, 846 F.3d at 1206; Deere,
703 F.3d at 1359; Verve, 311 F.3d at 1120; Ecolab, 264 F.3d at 1367. The opinion of Plaintiff’s
expert is further persuasive. (See Dkt. No. 61, Ex. 13, Mar. 18, 2021 Long Decl., at ¶ 32 (“Similar
values of the SWR or the return loss (RL) over the desired frequency bands are the best measures
of the ‘substantially similar impedance level.’”); see also id., at ¶ 38). The authorities cited by
Defendants, such as Datamize (which involved an “aesthetically pleasing” term), are also
unpersuasive. See, e.g., Datamize, 417 F.3d at 1354 (“[T]he identification of parameters one might
consider fails to explain how the parameters should be evaluated or weighed to reach the
conclusion that an interface screen is ‘aesthetically pleasing.’”); Interval Licensing, 766 F.3d at
1371 (affirming district court’s finding of indefiniteness as to the term “unobtrusive manner”
because “whether something distracts a user from his primary interaction depends on . . . the
circumstances under which any single user interacts with the display”); Geneva Pharms. Inc. v.
GlaxoSmithKline PLC, 349 F.3d 1373, 1384 (Fed. Cir. 2003) (rejecting as “the epitome of
indefiniteness” a construction under which “a formulation . . . might infringe or not depending on
- 48 -

its usage in changing circumstances”); Berkheimer, 881 F.3d at 1363. The opinions of Defendants’
expert in this regard are likewise unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone
Decl., at ¶¶ 85–87).8
Defendants cite Figure 9, Figure 12, the written description, and the opinions of
Defendants’ expert as support for Defendants’ alternative proposal of “return loss (LR) which must
be less than -14 dB or equivalent SWR (<1.5).” See ’432 Patent at 8:36–39 & 9:25–27. On
balance, this is a specific feature of particular disclosed embodiments that should not be imported
into the claim construction. See Phillips, 415 F.3d at 1323; see also ’432 Patent at 7:34–46
(“Below are described, for purposes of illustration only, two non-limiting examples of operational
modes for Multilevel Antennae (AM1 and AM2) for specific environments and applications.”).9
The Court therefore expressly rejects Defendants’ proposed construction, and 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 technical scope, to
clarify and when necessary to explain what the patentee covered by the claims, for use in the

The parties’ competing citations of, and arguments regarding, the deposition of Plaintiff’s
expert, Dr. Stuart Long, do not significantly affect the Court’s analysis. (See Dkt. No. 61,
Ex. 12, Mar. 30, 2021 Long dep. at 271:9–12; see also Dkt. No. 65, Ex. L, Mar. 30, 2021 Long
dep. at 237:18–238:6, 238:17–24, 243:4–244:24, 264:5–25, 263:2–21 & 278:5–17). To
whatever extent Defendants have called these opinions of Plaintiff’s expert into question, the
burden remains on Defendants to prove indefiniteness by clear and convincing evidence. See
Sonix, 844 F.3d at 1377.
8

See also ’432 Patent, Cl. 6 (“wherein said antenna is included in a portable communications
device”); Dkt. No. 61, Ex. 13, Mar. 18, 2021 Long Decl., at ¶ 46:
9

I disagree with th[e] opinion [of Defendants’ expert] because an SWR < 1.5 is not
representative for mobile phones. A person of ordinary skill in the art would
understand that for internal antennas for mobile phones, inherent restrictions on
their design make such a level of SWR unreasonable. As these antennas must be
compact enough to fit inside the handset in a very tight environment, and must
operate effectively at a number of widely separated frequency bands, a much larger
value of SWR is acceptable and common.
- 49 -

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); Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 977–79 (Fed. Cir. 2021).
Moreover, assessing “substantial similarity” is a task not atypical for resolution by a jury,
especially with the aid of competing expert testimony. Defendants have not persuaded the Court
to depart from the plain and ordinary meaning. See Phillips, 415 F.3d at 1312.
The Court accordingly hereby construes “substantially similar impedance level and
radiation pattern,” “radio electric behavior substantially similar,” and “substantially similar
combined amount of resistance and reactance . . . and radiation pattern” to have their plain
meaning.

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J. “current” terms
“circuitous current”
(’432 Patent, Claim 1;
’431 Patent, Claim 1;
’541 Patent, Claim 17)
“current within [the/said] [first/second/third] portion”
(’541 Patent, Claim 17)
“winding current”
(’069 Patent, Claim 32;
’421 Patent, Claim 1)
“electric currents on the [first/second] portion”
(’617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary; plain and ordinary Indefinite
meaning applies

(Dkt. No. 56, Ex. B, at 21; Dkt. No. 61, at 20; Dkt. No. 71, Ex. A, at 3, 8, 12–13, 15, 19 & 27).
(1) The Parties’ Positions
Plaintiff argues, for example, “a person skilled in the art could look at current density
diagrams and, relying on the principle that radiated power is proportional to the current density
squared, would be able to determine which arrangement of geometric elements or portions were
contributing to that radiated power.” (Dkt. No. 61, at 21 (citation omitted)). As to “circuitous”
and “winding,” Plaintiff argues that “[s]imilarly to the ‘substantial’ terms, it is not a specific degree
or amount of bending or winding, but rather the nature of the current path that is important and
that a person skilled in the art would be able to determine.” (Id. (citation omitted)).
Defendants respond that “the claims use ‘current’ in a specialized way, but do not
reasonably describe the unique meaning,” and “the claim terms that require ‘circuitous’ or

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‘winding’ current paths do not reasonably apprise a person of ordinary skill in the art as to their
scope.” (Dkt. No. 65, at 21–22).
Plaintiff replies that “[a] person of ordinary skill in the art would know that the relevant
current can be determined from which sections of the antenna contribute to the radiation.” (Dkt.
No. 67, at 7–8 (citation omitted)). Plaintiff also argues that “circuitous” and “winding” are
reasonably clear, especially in light of the specification and the prosecution history. (Id., at 8).
At the July 6, 2021 hearing, Plaintiff argued that the claims and the specification refer to
the portions of the antenna that are radiating. Defendants argued that although the parties agree
there will be some amount of current throughout the entire antenna, there are no objective criteria
in the intrinsic evidence regarding what is relevant current for these limitations, and the result is
an impermissible “zone of uncertainty” as discussed in Nautilus, 572 U.S. 909–10.
(2) Analysis
These terms were not presented as disputed terms in Samsung or ZTE.
As to “winding current,” the meaning of this term is reasonably clear in light of disclosure
in the specification:
In addition to their multiband behavior, multilevel structure antennae usually have
a smaller than usual size as compared to other antennae of a simpler structure.
(Such as those consisting of a single polygon or polyhedron). This is because the
path followed by the electric current on the multilevel structure is longer and more
winding than in a simple geometry, due to the empty spaces between the various
polygon or polyhedron elements. Said empty spaces force a given path for the
current (which must circumvent said spaces) which travels a greater distance and
therefore resonates at a lower frequency.
’432 Patent at 3:16–26 (emphasis added).
As to “circuitous,” the language of Claim 1 of the ’432 Patent, for example, provides
context by reciting (emphasis added): “empty spaces in an overall structure of the conductive
radiating element to provide a circuitous current path.”
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The patent office proceedings cited by the parties are consistent with “winding” and
“circuitous” being understandable. (See Dkt. No. 65, Ex. B, Oct. 2, 2012 Patent Owner’s Reply
to Action Closing Prosecution, at 25 (TCL-FRAC00033644) (“The term ‘circuitous’ has a wellaccepted ordinary meaning as ‘long and winding.’”); see id., at 25–32 (TCL-FRAC00033644–51);
id., Ex. N, Aug. 2, 2012 Action Closing Prosecution, at 27 (“a circuitous path may be formed by
successive straight lines”)).
The demonstrative illustrations in prosecution history cited by Defendants do not give rise
to any lack of reasonable clarity as to the meaning of “circuitous” but rather provide further
context. (See Dkt. No. 65, at 22–23 (citing Ex. B, Oct. 2, 2012 Patent Owner’s Reply to Action
Closing Prosecution)). These illustrations are reproduced here:

Although these demonstratives were created in the course of an inter partes reexamination and
therefore may be of lesser weight than if they had been created in a pre-litigation, non-adversarial
context, these demonstrates are still useful and may be given some amount of weight in considering
how the patentee has used the terms here at issue.
As to the “portion” terms, the specification discloses:
The present invention consists of an antenna whose radiating element is
characterised by its geometrical shape, which basically comprises several polygons
or polyhedrons of the same type.
***
The number of frequency bands is proportional to the number of scales or sizes of
the polygonal elements or similar sets in which they are grouped contained in the
geometry of the main radiating element.
- 53 -

’432 Patent at 2:43–47 & 3:11–15.
The claims provide context for understanding “portions,” such as with reference to “a
plurality of geometric elements” that is “associated with [first/second/third] frequency band” in
Claim 17 of the ’541 Patent, which recites (emphasis added):
17. A multi-band antenna comprising:
a ground plane; and
a conductive radiating element electrically coupled to the ground plane and
including at least one multilevel structure,
said at least one multilevel structure comprising a plurality of
electromagnetically coupled geometric elements, wherein a perimeter of the
multilevel structure has more than five sides,
said plurality of geometric elements including at least three portions, a first
portion being associated with a first selected frequency band, a second portion
being associated with a second selected frequency band and a third portion being
associated with a third selected frequency band, at least substantial parts of said
second and third portions being part of the first portion, said first, second and third
portions defining empty spaces in an overall structure of the conductive radiating
element to provide respective circuitous current paths within the first portion,
within the second portion and within the third portion, a plurality of the circuitous
current paths overlapping within a plurality of the geometric elements, and
the current within said first portion providing said first selected frequency
band with radio electric behavior substantially similar to the radio electric behavior
of said second and third selected frequency bands, the current within the second
portion providing said second selected frequency band with radio electric behavior
substantially similar to the radio electric behavior of said first and third selected
frequency bands, and the current within the third portion providing said third
selected frequency band with radio electric behavior substantially similar to the
radio electric behavior of said first and second selected frequency bands,
wherein the multi-band antenna is an internal antenna concealed within a
portable communications device.
Claim 17 of the ’617 Patent is similar in this regard. See ’617 Patent, Cl. 17 (reciting, for
example, “a first portion having a first geometry configured to operate at a range of frequencies of
the three ranges of frequencies” and “at least one structure including a generally identifiable nonconvex geometric element, wherein said non-convex geometric element comprises a plurality of
convex geometric elements defining the first portion”).

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Defendants submit that “current will travel through all of the radiating part of an antenna
when that antenna is sending or receiving a signal” (Dkt. No. 65, at 21), as Plaintiff’s expert has
evidently acknowledged,10 and Defendants’ expert acknowledges that a person of ordinary skill in
the art “could run computer simulations using computational electromagnetic modeling to show
the levels of current at locations within the antenna for different frequencies.” (See Dkt. No. 61,
Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶ 91). Defendants do not demonstrate that the “portions”
terms require current to be present only within certain portions at particular times. See, e.g., ’541
Patent, Cl. 17 (reproduced above). The opinions of Plaintiff’s expert are persuasive in this regard.
(See Dkt. No. 61, Ex. 13, Mar. 18, 2021 Long Decl., at ¶¶ 49–50). Defendants’ argument that the
patents-in-suit fail to disclose a “threshold” current (see Dkt. No. 65, at 21) is unavailing.
Finally, the indefiniteness opinions of Defendants’ expert are unpersuasive. (See Dkt. No.
61, Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶¶ 92–94 & 99). The Halliburton case cited by
Defendants is likewise unpersuasive. See Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d
1244, 1256 (Fed. Cir. 2008) (finding “fragile gel” term indefinite). Indeed, Plaintiff points out that
Defendants’ expert demonstrated an understanding of different “portions” of a multilevel antenna
in a declaration in support of a petition for inter partes review of the ’431 Patent. (Dkt. No. 61,
Ex. 14, IPR2018-01451, Aug. 3, 2018 Bartone Decl., at ¶¶ 257–58).11

10

(See Dkt. No. 61, Ex. 13, Mar. 18, 2021 Long Decl., at ¶ 49).

The parties’ competing citations of, and arguments regarding, the deposition of Plaintiff’s
expert, Dr. Stuart Long, do not significantly affect the Court’s analysis. (See Dkt. No. 65, Ex. L,
Mar. 30, 2021 Long dep. at 53:17–54:6 (current travels through all portions of antenna), 56:2–7
(similar), 58:24–59:13 (referring to “significant” current), 59:14–19 (“I don’t think it’s
something that you can put a specific level on.”), 60:17–20, 62:7–10 (“significant” currents are
“the ones that I would say are primarily responsible for the radiating fields from the antenna”),
62:11–18, 68:2–69:10, 72:22–74:5, 81:3–83:25 (regarding demonstrative illustrations in
prosecution history) & 84:10–13). To whatever extent Defendants have called these opinions of
11

- 55 -

The Court therefore expressly rejects Defendants’ indefiniteness argument, and 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; Bayer,
989 F.3d at 977–79.
The Court accordingly hereby construes “circuitous current,” “winding current,”
“current within [the/said] [first/second/third] portion,” and “electric currents on the
[first/second] portion” each to have their plain meaning.
K. “wherein the geometric elements are arranged such that the antenna element does not
comprise a group of single band antennas that respectively operate in the at least first and
second non-overlapping frequency bands”
“wherein the geometric elements are arranged such that that the antenna element does
not comprise a group of single band antennas that respectively operate in the at least
first and second non-overlapping frequency bands”
(’421 Patent, Claim 1;
’069 Patent, Claim 32)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary

Indefinite

(Dkt. No. 56, Ex. B, at 21–22; Dkt. No. 61, at 22; Dkt. No. 71, Ex. A, at 15 & 19).
(1) The Parties’ Positions
Plaintiff argues that “TCL’s entire indefiniteness argument rests on the curious notion that
something other than the frequency bands themselves should be used to determine whether the
frequency bands overlap or not. But the claim itself provides the property, characteristic, or metric

Plaintiff’s expert into question, the burden remains on Defendants to prove indefiniteness by
clear and convincing evidence. See Sonix, 844 F.3d at 1377.
- 56 -

that determines overlap: the frequency band itself,” and “the specifications supply several
examples of frequency bands.” (Dkt. No. 61, at 22 (citations omitted)).
Defendants respond that whereas presumably something distinguishes a single multiband
antenna from multiple single-band antennas, “[n]either the claims, the Written Description, nor the
prosecution history of the ʼ421 patent (the only patent that recites this term) provides objective
guidance on this point.” (Dkt. No. 65, at 23). Defendants also argue that, as to the “peripheral
dispute” regarding “how to determine non-overlapping frequency bands,” “Fractus fails to offer
any objective guidance on this point.” (Id., at 24).
Plaintiff replies that the claim language and the specification are sufficiently clear
regarding distinguishing a group of single-band antennas. (See Dkt. No. 67, at 8).
At the July 6, 2021 hearing, Plaintiff reiterated the arguments set forth in its briefing.
Defendants argued that the specification contains no objective guidance and that confusion arises
when antenna structures physically overlap one another.
(2) Analysis
Claim 32 of the ’069 Patent, for example, recites (emphasis added):
32. An apparatus comprising:
an internal antenna element having a multi-band behavior, the antenna
element being concealed within a portable communication device and configured
to operate in at least three frequency bands, the antenna element comprising a
plurality of geometric elements arranged to provide at least three winding current
paths that circumvent empty spaces in the antenna element, the at least three
winding current paths respectively corresponding to the at least three frequency
bands to provide the antenna element with the multi-band behavior, wherein
portions of the at least three winding current paths extend along a plurality of
common geometric elements; and
a ground plane, the antenna element being electrically coupled to the ground
plane;
wherein the geometric elements are arranged such that the antenna element
does not comprise substantially non-overlapping portions that serve as respective
single band antennas.

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The specification discloses:
In specialized literature it is already possible to find descriptions of certain antennae
designs which allow to cover a few bands. However, in these designs the multiband
behavior is achieved by grouping several single band antennae or by incorporating
reactive elements in the antennae (concentrated elements as inductors or capacitors
or their integrated versions such as posts or notches) which force the apparition of
new resonance frequencies. Multilevel antennae on the contrary base their
behavior on their particular geometry, offering a greater flexibility to the antenna
designer as to the number of bands (proportional to the number of levels of detail),
position, relative spacing and width, and thereby offer better and more varied
characteristics for the final product.
’432 Patent at 3:45–57 (emphasis added).
Plaintiff’s expert has opined regarding how to determine whether geometric elements are
arranged such that the antenna element does not comprise a group of single band antennas. (See
Dkt. No. 65, Ex. L, Mar. 30, 2021 Long dep. at 226:25–227:13). Also, Defendants’ expert
acknowledges that defined frequency bands can be compared to determine whether they are
overlapping. (Dkt. No. 61, Ex. 11, Mar. 29, 2021 Bartone dep. at 95:15–22).
On balance, the claim language here at issue “inform[s] those skilled in the art about the
scope of the invention with reasonable certainty.” Nautilus, 572 U.S. at 910. The contrary
opinions of Defendants’ expert are unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone
Decl., at ¶¶ 98–102).12
The Court therefore expressly rejects Defendants’ indefiniteness argument, and no further
construction is necessary. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d at

The parties’ competing citations of, and arguments regarding, the deposition of Plaintiff’s
expert, Dr. Stuart Long, do not significantly affect the Court’s analysis. (See Dkt. No. 65, Ex. L,
Mar. 30, 2021 Long dep. at 226:10–11, 226:25–227:13 & 227:25–228:14). To whatever extent
Defendants have called these opinions of Plaintiff’s expert into question, the burden remains on
Defendants to prove indefiniteness by clear and convincing evidence. See Sonix, 844 F.3d at
1377.
12

- 58 -

1362; Finjan, 626 F.3d at 1207; ActiveVideo, 694 F.3d at 1326; Summit 6, 802 F.3d at 1291; Bayer,
989 F.3d at 977–79.
The Court accordingly hereby construes “wherein the geometric elements are arranged
such that that the antenna element does not comprise a group of single band antennas that
respectively operate in the at least first and second non-overlapping frequency bands” to
have its plain meaning.
L. “generally identifiable”
“generally identifiable”
(’632 Patent, Claim 17;
’617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary

Indefinite

(Dkt. No. 56, Ex. B, at 22; Dkt. No. 61, at 23; Dkt. No. 71, Ex. A, at 23 & 27).
(1) The Parties’ Positions
Plaintiff argues that “there can be little question that even a lay person understands the
plain and ordinary meaning of ‘generally’ as referring to usually or most of the time.” (Dkt.
No. 61, at 24 (citation omitted)).
Defendants respond that “[t]his element summons the vagaries of a person’s opinion,” as
“what elements are ‘generally identifiable’ varies from observer to observer.” (Dkt. No. 65, at 24
(citation omitted)). Defendants also argue: “That Dr. Bartone [(Defendants’ expert)] was able to
find elements in prior art antennas that satisfy this claim term does not create an objective standard
for when elements are ‘generally identifiable’ or not.” (Id., at 25 (citation omitted)).

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Plaintiff replies that Defendants’ reliance on case law regarding the subjectivity of a term
such as “aesthetically pleasing” is inapplicable and unpersuasive as to the use of “generally
identifiable” in the patents-in-suit. (Dkt. No. 67, at 9).
At the July 6, 2021 hearing, Defendants argued that Plaintiff’s own expert, in his
deposition, was unable to point to any generally identifiable geometric elements, which
Defendants argued demonstrates that the opinions of Plaintiff’s expert are unreliable and do not
support Plaintiff’s arguments against indefiniteness. Plaintiff argued that Defendants’ arguments
pertain to infringement, not indefiniteness.
(2) Analysis
The word “generally” is a word used in common parlance and has not been shown to have
any special technical meaning in the present case. Defendants’ indefiniteness argument is
undermined by constructions of terms including the word “generally” in other cases. See, e.g.,
Sparton Corp. v. United States, 68 Fed. Cl. 34, 46 (2005) (finding that “the generally understood
meaning of the term ‘generally’” is “for the most part”); Neodron, Ltd. v. Lenovo Grp., Ltd., No.
19-CV-05644-SI, 2020 WL 3962002, at *6 (N.D. Cal. July 13, 2020) (Illston, J.) (rejecting
indefiniteness argument as to the term “generally straight line,” noting that the Federal Circuit has
found “the word ‘generally’ acts as a descriptive term ‘commonly used in patent claims to avoid a
strict numerical boundary’”) (quoting Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc.,
340 F.3d 1298, 1310–11 (Fed. Cir. 2003)).
This is consistent with use of the word “identifiable” in the specification: “FIG. 4 describes
multilevel structures (4.1–4.14) formed by parallelepipeds (squares, rectangles, rhombi . . .). Note
that the component elements are always individually identifiable (at least most of them are).” ’432
Patent at 5:35–38.

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Indeed, Dr. Bartone was able to apply the word “generally” in a declaration in support of
a petition for inter partes review of the ’632 Patent:
While the specification of the ’632 Patent does not specify how closed figures
within an antenna structure is [sic, are] identified, I could visually follow the
contour of the Grangeat antenna by moving from left to right and bottom to top of
the antenna structure shown below to identify longest perimeters for each
rectangular polygon such that the least number of polygons necessary to form the
generally distinguishable polygons are determined. The perimeters of these closed
plane figures are also interconnected, as shown in the figure below.
(Dkt. No. 61, Ex. 15, IPR2018-01462, Aug. 3, 2018 Bartone Decl., at ¶ 289 (emphasis modified)).
Defendants cite authority that “indefiniteness of a claim does not always imply inability to conduct
a prior-art analysis needed for an inter partes review,” Cochlear Bone Anchored Sols. AB v. Oticon
Med. AB, 958 F.3d 1348, 1360 (Fed. Cir. 2020), but the statement by Defendants’ expert is
nonetheless worthy of consideration in assessing whether the disputed term is indefinite.
Based on all of the foregoing, the contrary opinion of Defendants’ expert (that
indefiniteness arises here because what elements are “generally identifiable” is subjective) is
unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶ 103). The parties’
competing citations of the deposition of Plaintiff’s expert, Dr. Stuart Long, do not compel
otherwise. (See Dkt. No. 65, Ex. L, Mar. 30, 2021 Long dep. at 124:7–8, 124:17–125:17, 127:8–
13 & 128:5–14). To whatever extent Defendants have called these opinions of Plaintiff’s expert
into question, the burden remains on Defendants to prove indefiniteness by clear and convincing
evidence, see Sonix, 844 F.3d at 1377, and Defendants have not met this burden. The above-cited
authorities are compelling in the circumstances of the present case. See, e.g., Anchor Wall Sys.,
340 F.3d at 1310–11.
The Court therefore rejects Defendants’ indefiniteness argument, and any remaining
dispute presents factual issues regarding infringement rather than any legal question for claim

- 61 -

construction. See Acumed, 483 F.3d at 806 (“[A] sound claim construction need not always purge
every shred of ambiguity. The resolution of some line-drawing problems . . . is properly left to the
trier of fact.”) (citing PPG, 156 F.3d at 1355 (“after the court has defined the claim with whatever
specificity and precision is warranted by the language of the claim and the evidence bearing on the
proper construction, the task of determining whether the construed claim reads on the accused
product is for the finder of fact”)); see also Eon, 815 F.3d at 1318–19 (citing Acumed and PPG).
The Court therefore expressly rejects Defendants’ indefiniteness argument, and 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; Bayer,
989 F.3d at 977–79.
The Court accordingly hereby construes “generally identifiable” to have its plain
meaning.
M. “at least substantial parts of said second and third portions being part of the first
portion”
“at least substantial parts of said second and third portions being part of the first
portion”
(’541 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

“the second and third portions have areas that Indefinite
substantially overlap an area of the first
portion, where the portions differ in size or
configuration”

(Dkt. No. 56, Ex. B, at 22; Dkt. No. 61, at 24; Dkt. No. 71, Ex. A, at 13).

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(1) The Parties’ Positions
Plaintiff argues that “this Court has already construed this term and it had no issues before
with the meaning of ‘substantial.’” (Dkt. No. 61, at 25). Also, Plaintiff argues: “As the claim
language recites, the substantial parts are of the ‘second and third’ portions. There is no ambiguity
– this phrasing requires parts of each of the second and third portions.” (Id.).
Defendants respond that “the term ‘substantial’ is not attended by any objective
boundaries,” and “it is unclear what the relevant measure is.” (Dkt. No. 65, at 25). “For example,”
Defendants submit, “does this term concern the number of the parts of the second and third
portions, the areas of the parts of the second and third portions, or something different?” (Id.).
Plaintiff replies:
Neither of TCL’s arguments about indefiniteness for this term have merit. First,
for the same reasons as discussed above [regarding “substantially within”], the use
of “substantial” does not make the term indefinite. Second, TCL attempts to
generate confusion by referring to its expert’s questions about “what the relevant
measure is.” TCL Br. [(Dkt. No. 65) at] 25. The claim language provides the
answer: substantial parts of the second and substantial parts of the third portion
need to be a part of the first portion. Questioning whether the relevant units are
geometric elements and then raising further questions about fractions of those units
does nothing to show indefiniteness given the plain language of the claim itself
establishes that it is the portions that are the relevant units.
(Dkt. No. 67, at 9).
At the July 6, 2021 hearing, Defendants argued that Plaintiff’s expert has been unable to
identify any objective criteria. Plaintiff argued that a person of ordinary skill in the art, reading
this disputed term in context, knows whether there is substantial overlap.
(2) Analysis
Claim 17 of the ’541 Patent recites (emphasis added):
17. A multi-band antenna comprising:
a ground plane; and

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a conductive radiating element electrically coupled to the ground plane and
including at least one multilevel structure,
said at least one multilevel structure comprising a plurality of
electromagnetically coupled geometric elements, wherein a perimeter of the
multilevel structure has more than five sides,
said plurality of geometric elements including at least three portions, a first
portion being associated with a first selected frequency band, a second portion
being associated with a second selected frequency band and a third portion being
associated with a third selected frequency band, at least substantial parts of said
second and third portions being part of the first portion, said first, second and third
portions defining empty spaces in an overall structure of the conductive radiating
element to provide respective circuitous current paths within the first portion,
within the second portion and within the third portion, a plurality of the circuitous
current paths overlapping within a plurality of the geometric elements, and
the current within said first portion providing said first selected frequency
band with radio electric behavior substantially similar to the radio electric behavior
of said second and third selected frequency bands, the current within the second
portion providing said second selected frequency band with radio electric behavior
substantially similar to the radio electric behavior of said first and third selected
frequency bands, and the current within the third portion providing said third
selected frequency band with radio electric behavior substantially similar to the
radio electric behavior of said first and second selected frequency bands,
wherein the multi-band antenna is an internal antenna concealed within a
portable communications device.
ZTE construed this disputed term to mean “the second and third portions have areas that
substantially overlap an area of the first portion, where the portions differ in size or configuration.”
ZTE at 43 & 45. There was no indefiniteness challenge in ZTE. See id. at 40–46.
“The word ‘substantially,’ when used in a claim, can denote either language of
approximation or language of magnitude.” Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325,
1333 (Fed. Cir. 2010); see Epcon Gas Sys., Inc. v. Bauer Compressors, Inc., 279 F.3d 1022, 1031
(Fed. Cir. 2002) (“[T]he phrase ‘substantially below’ signifies language of magnitude, i.e., not
insubstantial.”). As to the rhetorical question posed in Defendants’ response brief―“does this
term concern the number of the parts of the second and third portions, the areas of the parts of the

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second and third portions, or something different?”13―the Court in ZTE found that the disputed
term refers to substantially overlapping areas. See ZTE at 43–44.
Defendants do not persuasively justify departing from the Court’s analysis and construction
in ZTE. See id. On balance, Defendants fail to demonstrate any lack of reasonable clarity as to
the present disputed term. For example, the opinions of Defendants’ expert are unpersuasive. (See
Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone Decl., at ¶¶ 68–71). The authorities cited by Defendants,
such as regarding particular usage of the phrase “at least about,” are unpersuasive. See Amgen,
Inc. v. Chugai Pharms Co., Ltd., 927 F.2d 1200, 1218 (Fed. Cir. 1991) (affirming indefiniteness
finding as to a claim directed to erythropoietin that recited “a specific activity of at least about
160,000 IU per absorbance unit at 280 nanometers”).
The Court therefore hereby construes “at least substantial parts of said second and third
portions being part of the first portion” to mean “the second and third portions have areas
that substantially overlap an area of the first portion, where the portions differ in size or
configuration.”
N. “portions substantially overlap”
“portions substantially overlap”
(’632 Patent, Claim 17;
’617 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary; plain and ordinary Indefinite
meaning applies
(Dkt. No. 56, Ex. B, at 23; Dkt. No. 61, at 26; Dkt. No. 71, Ex. A, at 23 & 28).

13

(Dkt. No. 65, at 25).
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(1) The Parties’ Positions
Plaintiff reiterates that “substantial” is reasonably clear, and Plaintiff argues that “TCL
cannot demonstrate – apart from conclusory assertions by its expert – that a person of skill in the
art could not identify this ‘overlap.’” (Dkt. No. 61, at 26).
Defendants respond that “[t]he record does not provide objective guidance as to whether
portions ‘substantially’ overlap.” (Dkt. No. 65, at 26). Moreover, Defendants argue, “it is unclear
what is the appropriate metric—the area of the parts of the portions that overlap, their number, or
something different.” (Id. (citation omitted)).
Plaintiff reiterates that “the use of substantially does not make the term indefinite.” (Dkt.
No. 67, at 9). Plaintiff argues that “again TCL attempts to generate confusion where none exists
regarding what should overlap – and the answer again is that portions must overlap.” (Id.).
(2) Analysis
For the same reasons discussed above as to the term “at least substantial parts of said second
and third portions being part of the first portion” and as to the “substantially within” terms, the
present disputed term is not indefinite. The parties’ competing citations of the deposition of
Plaintiff’s expert, Dr. Stuart Long, do not compel otherwise. (See Dkt. No. 65, Ex. L, Mar. 30,
2021 Long dep. at 171:16–21 (“It’s just using the English term in its ordinary meaning.”), 177:12–
23 (“I don’t think there’s a need or there is a specific amount or level for -- that would be needed
to be identified for a person of ordinary skill in the art to understand what this term means, to
understand what substantial overlap means.”), 179:17–24, 180:17–181:6 & 182:23–183:16).
To whatever extent Defendants have called these opinions of Plaintiff’s expert into
question, the burden remains on Defendants to prove indefiniteness by clear and convincing
evidence. See Sonix, 844 F.3d at 1377. Defendants have not met that burden, and the the opinion

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of Defendants’ expert does not persuade the Court otherwise. (See Dkt. No. 61, Ex. 4, Mar. 5,
2021 Bartone Decl., at ¶ 114).
The Court therefore expressly rejects Defendants’ indefiniteness argument, and 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; Bayer,
989 F.3d at 977–79.
The Court accordingly hereby construes “portions substantially overlap” to have its
plain meaning.
O. “associated with”
“associated with”
(’432 Patent, Claim 1;
’431 Patent, Claim 1;
’541 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary

Indefinite

(Dkt. No. 56, Ex. B, at 23–24; Dkt. No. 61, at 26; Dkt. No. 71, Ex. A, at 3 & 13).
(1) The Parties’ Positions
Plaintiff argues: “TCL relies on expert testimony that refers back to the ‘current’ terms and
makes the same argument: that a person of ordinary skill could not tell how to determine which
portions have current and therefore are ‘associated with’ particular frequency bands. For the same
reasons as for the ‘current’ terms, TCL is wrong. The specifications teach that it is the radiating
element in the operational frequency that defines what is a portion.” (Dkt. No. 61, at 26 (citations
omitted)).
Defendants respond:
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As TCL best understands Fractus’ position, whether this element is satisfied
depends on current density distributions. However, Fractus fails to articulate any
objective methodology. Is a portion “associated with” a frequency if all the portion
has a current density above a certain amount? Instead, can the element be satisfied
if only a segment of a portion has a current density above that threshold? If so,
does it matter how large the segment is, how much above the threshold the current
density is, or some combination of the two? Fractus leaves these questions
unanswered in its opening brief.
(Dkt. No. 65, at 27).
Plaintiff replies that “[f]or the same reasons that TCL’s arguments about current and
indefiniteness fail, its arguments about portions being associated with frequency bands fail.” (Dkt.
No. 67, at 10).
At the July 6, 2021 hearing, Plaintiff submitted that current density is measured in decibels,
which uses a scale in which intensity increases exponentially, so Plaintiff argued that the
association relationship would be obvious to a person of ordinary skill in the art. Defendants
argued that Plaintiff’s expert has been unable to determine whether particular elements are
associated with particular frequencies.
(2) Analysis
Claim 17 of the ’541 Patent, for example, recites in relevant part (emphasis added): “said
plurality of geometric elements including at least three portions, a first portion being associated
with a first selected frequency band, a second portion being associated with a second selected
frequency band and a third portion being associated with a third selected frequency band.”
The parties agree that “associated with” presents essentially the same dispute as the terms
“current within [the/said] [first/second/third] portion,” and “electric currents on the [first/second]
portion,” which are addressed above.
For the same reasons discussed above as to those “current” terms, the meaning of
“associated with” is reasonably clear in the context of the claims in which the term is used. The
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opinion of Plaintiff’s expert is further persuasive, such as that a person of ordinary skill in the art
would be able to determine which portions are associated with which frequency bands based on
current density. (See Dkt. No. 61, Ex. 13, Mar. 18, 2021 Long Decl., at ¶ 72). The parties’
competing citations of the deposition of Plaintiff’s expert, Dr. Stuart Long, do not compel
otherwise. (See Dkt. No. 65, Ex. L, Mar. 30, 2021 Long dep. at 187:10–24, 198:11–199:2, 205:7–
18, 207:10–18, 208:25–209:25 & 214:6–217:6.
Further, even to whatever extent Defendants have called these opinions of Plaintiff’s expert
into question, the burden remains on Defendants to prove indefiniteness by clear and convincing
evidence, see Sonix, 844 F.3d at 1377, and Defendants have not met this burden. The opinions of
Defendants’ expert in this regard are unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5, 2021 Bartone
Decl., at ¶¶ 112–15).
The Court therefore expressly rejects Defendants’ indefiniteness argument, and 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; Bayer,
989 F.3d at 977–79.
The Court accordingly hereby construes “associated with” to have its plain meaning.
P. “a closed figure defined by a free perimeter thereof and a projection of ones of the longest
exposed perimeters thereof to define the least number of closed figures within the region
necessary to form the generally distinguishable closed figures”
“a closed figure defined by a free perimeter thereof and a projection of ones of the
longest exposed perimeters thereof to define the least number of closed figures within the
region necessary to form the generally distinguishable closed figures”
(’632 Patent, Claim 17)
Plaintiff’s Proposed Construction

Defendants’ Proposed Construction

No construction necessary

Indefinite

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(Dkt. No. 56, Ex. B, at 24; Dkt. No. 61, at 27; Dkt. No. 71, Ex. A, at 23).
(1) The Parties’ Positions
Plaintiff argues that the phrases “free perimeter” and “longest exposed perimeter,” which
Defendants’ expert opines are unclear, are in fact reasonably clear based on disclosures in the
specification. (See Dkt. No. 61, at 27–29).
Defendants respond:
This element is inherently circular and thus indefinite. It requires that a closed
figure (i.e., polygon) be defined by a free perimeter of the figure and projections of
the longest exposed perimeters of the figure (i.e., polygon). However, the longest
exposed perimeters of a figure cannot be identified until the figure is identified.
Thus, this element fails to provide [sic] a person of ordinary skill in the art as to its
scope with reasonable certainty.
(Dkt. No. 65, at 28).
Plaintiff replies that “the patent provides clear instructions on how to identify the various
constituent shapes,” and “the patent does provide means to determine the least number of closed
figures: for example, that the individual polygons contain the same number of sides.” (Dkt. No. 67,
at 10 (citations omitted)).
At the July 6, 2021 hearing, Plaintiff presented no oral argument and instead rested on its
briefing. Defendants reiterated the arguments set forth in their briefing.
(2) Analysis
Claim 17 of the ’632 Patent recites (emphasis added):
17. A multi-band antenna including:
at least one structure for the multi-band antenna useable at least three ranges
of frequencies, each of the at least three ranges of frequencies extending between
two limiting frequencies, the at least one structure being included in a portable
communication device and including at least two levels of detail, wherein one level
of detail makes up another level of detail, the at least one structure including at least
one antenna region comprising a set of closed figures bounded by the same number

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of sides, the sides comprising one or more of straight lines, portions of circles and
portions of ellipses,
the at least one structure including at least three portions, a first portion
having a first geometry configured to operate at a range of frequencies of the three
ranges of frequencies, a second portion located substantially within the first portion
and having a second geometry configured to operate at a range of frequencies of
the three ranges of frequencies and a third portion located substantially within the
first portion and having a third geometry configured to operate at a range of
frequencies of the three ranges of frequencies, the second and third portions
substantially overlap with the first portion,
wherein each of the closed figures in the antenna region is directly or
proximately linked to at least one other of the closed figures such that
electromagnetic power is exchanged between the closed figures in the antenna
region either directly through at least one point of contact or through a small
separation providing coupling,
wherein for at least 75% of the closed figures, the region or area of contact
between the closed figures is less than 50% of their perimeter or area,
wherein not all of the closed figures have the same size and the perimeter
of the at least one structure has a different number of sides than the closed figures
that compose the antenna region,
wherein each of a plurality of the closed figures of the antenna region is
generally identifiable as a closed figure defined by a free perimeter thereof and a
projection of ones of the longest exposed perimeters thereof to define the least
number of closed figures within the region necessary to form the generally
distinguishable closed figures where the closed figures perimeters are
interconnected, and
wherein the multi-band antenna is configured to operate at the at least three
ranges of frequencies and wherein at least one of the at least three ranges of
frequencies is within the 800 MHz–3600 MHz frequency range.
The specification informs the meaning of “free perimeter,” disclosing for example: “In case
(4.12), specifically, said elements have 100% of their perimeter free, without there being any
physical connection between them . . . .” ’632 Patent at 5:57–59. The specification discloses that
“FIG. 4 shows examples of multilevel structures based on parallelepipeds” (id. at 4:21–22), and
Figure 4.12 is reproduced here:

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Further, despite Defendants’ arguments (see Dkt. No. 65, at 28), this disputed term is not
circular. Instead, a person of ordinary skill in the art would understand how to identify free
perimeters and how to project perimeters so as to form closed figures of the antenna region. The
opinions of Defendants’ expert to the contrary are unpersuasive. (See Dkt. No. 61, Ex. 4, Mar. 5,
2021 Bartone Decl., at ¶¶ 105–09). The demonstrative illustrations set forth by the patentee during
reexamination, cited here by Defendants, do not compel otherwise. (See Dkt. No. 65, Ex. B, Oct.
2, 2012 Patent Owner’s Reply to Action Closing Prosecution, at 10 (TCL-FRAC00033629)). Even
if one assumes for the sake of argument that these demonstratives are inconsistent with the disputed
term or are otherwise flawed, these demonstratives do not give rise to indefiniteness.
Finally, the parties’ competing citations of the deposition of Plaintiff’s expert, Dr. Stuart
Long, do not demonstrate any indefiniteness. (See Dkt. No. 65, Ex. L, Mar. 30, 2021 Long dep.
at 141:13–22, 149:12–13, 151:1–2, 164:8–9, 164:18–19 & 166:14–24; see also Dkt. No. 67, Ex. 1,
Mar. 30, 2021 Long dep. at 137:3–10). To whatever extent Defendants have called these opinions
of Plaintiff’s expert into question, the burden remains on Defendants to prove indefiniteness by
clear and convincing evidence. See Sonix, 844 F.3d at 1377.
The Court therefore expressly rejects Defendants’ indefiniteness argument, and no further
construction is necessary. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d at

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1362; Finjan, 626 F.3d at 1207; ActiveVideo, 694 F.3d at 1326; Summit 6, 802 F.3d at 1291; Bayer,
989 F.3d at 977–79.
The Court accordingly hereby construes “a closed figure defined by a free perimeter
thereof and a projection of ones of the longest exposed perimeters thereof to define the least
number of closed figures within the region necessary to form the generally distinguishable
closed figures” to have its plain meaning.
V. CONCLUSION

.

The Court adopts the constructions set forth in this opinion for the disputed terms of the

patents-in-suit. The parties are ORDERED that they may not refer, directly or indirectly, to each
other’s claim construction positions in the presence of the jury. Likewise, the parties are
ORDERED to refrain from mentioning any portion of this opinion, other than the actual
definitions adopted by the Court, in the presence of the jury. Any reference to claim construction
proceedings is limited to informing the jury of the definitions adopted by the Court.
So ORDERED and SIGNED this 14th day of July, 2021.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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