WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 182

REPLY to 167 Claim Construction Brief,,,,, filed by WI-LAN Inc.. (Attachments: # 1 Affidavit Declaration of Jeffrey T. Han, # 2 Exhibit I - true and correct copy of U.S. Patent No. 5,603,095, # 3 Exhibit II - true and correct copy of U.S. Patent No. 5,239,682, # 4 Exhibit III - true and correct copy of U.S. Patent No. 5,659,598., # 5 Exhibit IV - true and correct copy of WO 96/37054., # 6 Exhibit V - true and correct copy of Sanford Bingham, Multiplexers, Computerworld, Nov. 27, 1989, at 61., # 7 Exhibit VI - true and correct copy of David J. Stang, Network)(Weaver, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
WI-LAN INC.,
Plaintiff,
v.
ALCATEL-LUCENT USA INC., et al.
Defendants.

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Civil Action No. 6:10-cv-521-LED

JURY TRIAL DEMANDED

PLAINTIFF WI-LAN INC.’S REPLY CLAIM CONSTRUCTION BRIEF

TABLE OF CONTENTS
I.

INTRODUCTION ............................................................................................................... 1

II. REPLY TO DEFENDANTS’ PROPOSED CONSTRUCTIONS ......................................... 1
1.

Subscriber Terminal ......................................................................................................1

2.

Orthogonal Channels .....................................................................................................4

3.

Time Division Multiplexing (TDM) Techniques ...........................................................5

4.

TDM Encoder / TDM Decoder......................................................................................7

5.

Overlay Codes ..............................................................................................................8

6.

Parameters pertaining to a wireless link within the cell indicative of whether that
wireless link is subject to interference from signals generated by other cells ...............10

i

TABLE OF AUTHORITIES
Cases 
3M Innovative Props. Co. v. Avery Dennison Corp.,
350 F.3d 1365 (Fed. Cir. 2003) ..................................................................................................9
ACTV, Inc. v. Walt Disney Co.,
346 F.3d 1082 (Fed. Cir. 2003) ...............................................................................................3
Am. Calcar, Inc. v. Am. Honda Motor Co.,
651 F.3d 1318 (Fed. Cir. 2011) ..................................................................................................3
Aventis Pharma S.A. v. Hospira, Inc.,
--- F.3d ---, 2012 WL 1155716 (Fed. Cir. Apr. 9, 2012)............................................................ 2, 3
Catalina Mktg. Int’l Inc. v. Coolsavings.com, Inc.,
289 F.3d 801 (Fed. Cir. 2002) ....................................................................................................4
Int’l Visual Corp.v. Crown Metal Mfg. Co.,
991 F.2d 768 (Fed. Cir. 1993) ...................................................................................................4
Liebel-Flarsheim Co. v. Medrad, Inc.,
358 F.3d 898 (Fed. Cir. 2004) .................................................................................................3
Linear Tech. Corp. v. Int’l Trade Comm’n,
566 F.3d 1049 (Fed. Cir. 2009) ..................................................................................................8
Northeastern Univ. v. Google, Inc.,
No. 2:07-cv-486-CE, 2010 WL 4511010 (E.D. Tex. Nov. 9, 2010) ...............................................9
Phillips v. AWH Corp.,
415 F.3d 1303 (Fed. Cir. 2005) ..................................................................................................4
Teleflex, Inc. v. Ficosa N. Am. Corp.,
299 F.3d 1313 (Fed. Cir. 2002) ...............................................................................................3
Thorner v. Sony Computer Entertainment America L.L.C.,
669 F.3d 1362 (Fed. Cir. 2012) .............................................................................................. 2, 3
Verizon Servs. Corp. v. Vonage Holdings Corp.,
503 F.3d 1295 (Fed. Cir. 2007) ..................................................................................................9

ii

I.

INTRODUCTION
Defendants’ proposed constructions are wrong for several reasons. First, it is the claims—not

the preferred embodiment—that define the invention.

Yet Defendants repeatedly try to import

limitations into the claims based on nothing more than their argument that the preferred embodiment
does it in this fashion. Second, Defendants ignore that the ordinary meaning of a term cannot be
narrowed absent a clear redefinition or disclaimer of the same.

Third, Defendants cherry-pick

dictionary definitions—importing limitations from the narrowest—while ignoring the definitions that
are consistent with the broader teaching in the patents. To the extent they are not addressed elsewhere,1
Wi-LAN responds to Defendants’ errors below and asks the Court to adopt its proposed constructions
for the reasons set forth in Wi-LAN’s Opening Brief, Dkt. 167 (“Wi-LAN’s Brief”) and herein.
II.

REPLY TO DEFENDANTS’ PROPOSED CONSTRUCTIONS
1. Subscriber Terminal
Defendants’ attempt to limit the term “subscriber terminal” to only “fixed-location” subscriber

terminals based on the preferred embodiment should be rejected. The only reference to fixed-location
subscriber terminals in the patents-in-suit is a single sentence in the description of the preferred
embodiment. See ’326 Pat. col.6 l.61-63. Defendants’ argument that “the inventors intended, and
deliberately expressed, their invention to encompass only the fixed-location devices” in the preferred
embodiment is simply wrong. See Defendants Responsive Claim Construction Brief, Dkt. 175 (“Defs.’
Br.”), at 8. As explained in Wi-LAN’s Brief, the reference to fixed-location subscriber terminals in
Figure 1 is expressly described as just an “example” of a system to which the specification expressly
says “the invention is not limited.” See Wi-LAN Br. 7 (quoting ’326 Pat. col.6 l.32-33; col.28 l.13-16)
(emphasis added). Defendants entirely ignore this in their brief.
1

Defendants’ arguments for the “time slot” and “channel pool” terms are fully addressed in Wi-LAN’s Brief and its
constructions should be adopted for the reasons already set forth. Wi-LAN responds to the arguments regarding the
means-plus-function terms in its opposition to Defendants’ Motion for Summary Judgment of Indefiniteness.

Instead, they wrongly assert that “subscriber terminal” had no ordinary meaning in the art. See
Defs.’ Br. 6. But persons of skill in the art commonly used the term “subscriber terminal” to refer to
both fixed-location and mobile devices in the early-mid 1990s. This is evident from the use of
“subscriber terminal” in other telecommunications patents filed near in time to the patents-in-suit. See,
e.g., U.S. Pat. No. 5,603,095 col.1 l.29-33 (filed Sep. 27, 1993) (“Thus the subscriber network
comprises, in the same way as a normal mobile telephone network, . . . the subscriber terminals
(mobile telephones) having a radio connection with the base stations.”), col.4 l.29-31 (explaining that a
“subscriber terminal” may comprise a “conventional telephone set,” but “the subscriber terminal can
also be a portable mobile telephone. . . .”); U.S. Pat. No. 5,239,682 col.3 l.38-40 (filed Jun. 6, 1991)
(“Base stations form the interface between a number of subscriber terminals such as portable handsets
13a and 13b and PSTN 12.”); U.S. Pat. No. 5,659,598 col.2 l.3-14 (filed Oct. 6, 1994) (describing a
“subscriber terminal” for use in a “mobile telecommunications system”); WO 96/37054 p.8 l.5-6 (filed
Apr. 19, 1996) (describing “[w]hen the subscriber terminal equipment moves”) (all emphases added).2
Because the ordinary meaning of “subscriber terminal” encompasses both fixed and mobile
devices, Defendants’ attempt to limit the claims to only the former fails absent a clear redefinition or
disclaimer in the intrinsic record. See Aventis Pharma S.A. v. Hospira, Inc., --- F.3d ---, 2012 WL
1155716, at *3 (Fed. Cir. Apr. 9, 2012) (explaining that the “[Federal Circuit] recently reiterated th[is]
stringent standard for narrowing a claim beyond its plain and ordinary meaning in Thorner v. Sony
Computer Entertainment America L.L.C., 669 F.3d 1362 (Fed. Cir. 2012)” (emphasis added)).3
Simply disclosing an embodiment where the subscriber terminal is a fixed-location device, as the
inventors did here, does not “express an intent to redefine the term.” See Thorner, 669 F.3d at 1368.
2

WO 96/37054 was cited during prosecution of U.S. Pat. No. 6,195,327 and, thus, is intrinsic evidence. Copies of
these patents are attached as Exhibits I-IV respectively to the Decl. of Jeffrey T. Han in support of this brief.
3
The “stringent standard” from Thorner was cited in Wi-LAN’s Brief to rebut Defendants’ improper attempts to
narrow the ordinary meaning of the claims. See Wi-LAN Br. 4, 6-7. Defendants fail to respond to Thorner in their
brief.

2

Attempting to turn the standard on its head, Defendants urge that the inventors redefined “subscriber
terminal” by not explicitly referring to it as a “mobile device.” See Defs.’ Br. 6-7. But the Federal
Circuit has consistently rejected exactly the redefinition-by-omission claim construction argument
Defendants make here. See, e.g., Aventis, 2012 WL 1155716, at *4 (refusing to limit the term
“perfusions” to those lasting “at least eight hours,” notwithstanding the specification’s express teaching
that the “new perfusions” and all of the embodiments had stability exceeding eight hours); Thorner,
669 F.3d at 1368 (“disclosing embodiments that all use the term the same way . . . is not sufficient to
redefine a claim term” (emphasis added)).4
Ignoring Aventis, Thorner, and the other precedent on precisely this point, Defendants rely on a
single, distinguishable case to try to defend their position. See Defs.’ Br. 7 (citing Am. Calcar, Inc. v.
Am. Honda Motor Co., 651 F.3d 1318 (Fed. Cir. 2011)). In American Calcar, the invention was a
centralized entertainment system for automobiles that could display information relating to different
radio stations or “sources.” Id. at 1324, 1337-39. The Federal Circuit limited the term “source” to just
fixed radio sources because the specification described other components in the invention, specifically
a “frequency scanner,” which would be unnecessary if the sources were not fixed radio stations. Id. at
1338. In contrast, nothing in the intrinsic record of the patents-in-suit suggests that the “techniques for
processing data transmitted and received over a wireless link” of the “present invention” would not
work with mobile subscriber terminals like those sold by Defendants. See ’326 Pat. col.1 l.8-12.
Finally, Defendants’ attempt to narrow the claims based on documents relating to one of the
applicant’s commercial embodiments is contrary to precedent. See Defs.’ Br. 8 (referring to Exs. 7 and
8 thereto). It is a “bedrock principle of patent law” that the claims, not the commercial embodiment,

4

See also Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 907 (Fed. Cir. 2004) (refusing to limit the term
“syringe receiving opening” to require a “pressure jacket” because “all that [defendant] can point to in the [intrinsic
record] is the absence of any embodiment that lacks a pressure jacket”); ACTV, Inc. v. Walt Disney Co., 346 F.3d
1082, 1091 (Fed. Cir. 2003); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327-28 (Fed. Cir. 2002).

3

define the scope of the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en
banc). Indeed, it is error to use the patentee’s commercial embodiment to construe the claims. Int’l
Visual Corp.v. Crown Metal Mfg. Co., 991 F.2d 768, 771-72 (Fed. Cir. 1993) (“In concluding that the
claims are limited to a plastic housing, the court apparently focused on [the patentee’s] commercial
embodiment . . . . This was erroneous . . . .”). This Court should reject the invitation to commit that
error, particularly given the ordinary meaning of “subscriber terminal” and the inventors’ express intent
that the invention not be limited to only those subscriber terminals shown in the preferred embodiment.
Defendants also erroneously argue the reference to “subscriber terminal” in the preamble of the
Central Terminal claims5 is limiting because the preamble also refers to a “wireless link” between a
subscriber and central terminal, which the body of the claim later refers to for antecedent. See Defs.’
Br. 9-10. But this is not the law. In Catalina, the Federal Circuit held that particular language in the
preamble was not limiting because, while the body of the claim referred back to other parts of the
preamble, it did not refer to or otherwise rely on that particular language for antecedent. Catalina
Mktg. Int’l Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 810 (Fed. Cir. 2002). The Central Terminal
claims do not refer to “subscriber terminal” outside the preamble. Because that term appears only in
the preamble, and the claims are directed to other inventions (such as the central terminal), the
reference to “subscriber terminal” in the preamble of these claims is not limiting. See Wi-LAN Br. 8-9.
2. Orthogonal Channels
Nothing in the intrinsic record supports the requirement in Defendants’ construction that
orthogonal channels must be “defined by” an orthogonal code. See Defs.’ Br. 10. As explained in WiLAN’s Brief, the specification says that these channels are created by such codes and the claims are
written in open-ended “comprising” form such that there is nothing to prevent the use of information, in

5

The Central Terminal claims are ’326 Pat. claim 1, ’819 Pat. claims 1 and 12, and ’327 Pat. claims 1, 11, 13, 15,
17, and 19. See Wi-LAN Br. 8 (defining same).

4

addition to an orthogonal code, to create these orthogonal channels. See Wi-LAN Br. 11. The fact that
Defendants do not even try to respond to this argument in their brief is telling.
Defendants’ lone objection to Wi-LAN’s construction is based on a misreading of the same.
As explained in Wi-LAN’s Brief, the intrinsic record teaches: (1) orthogonal codes are used to create
orthogonal channels, and (2) orthogonal codes cross-correlate to zero.

See Wi-LAN Br. 10.

Defendants agree on these points. See Defs.’ Br. 10-11. But they draw an unintended distinction
between “orthogonal channel” and “orthogonal code” in Wi-LAN’s construction in an attempt to
justify their own. Id. To the extent the Court decides that clarification on this point would be helpful,
Wi-LAN proposes the following addition (underlined) to its construction for orthogonal channels: “a
set of channels created using orthogonal codes that cross-correlate to zero with respect to each other.”
3. Time Division Multiplexing (TDM) Techniques
As explained in Wi-LAN’s Brief, Defendants’ attempt to import their “defined, repeated
sequence” limitation into “time division multiplexing (TDM) techniques” is contrary to the description
of the preferred embodiment, wherein the allocation occurs dynamically and is based on user demand.
Wi-LAN Br. 13-14. While Defendants argue that their construction is “entirely consistent” with the
dynamic allocation of time slots, this is simply not true. See Defs.’ Br. 19. Defendants’ construction
requires that the channel be “shared,” i.e., allocated, “among multiple wireless links . . . in a defined,
repeated sequence,” even where there is no data to transmit to a given subscriber terminal. See id. at
12; see also id. at 19 (quoting an extrinsic source stating that “TDM transmits empty space when the
device being polled is not active” in support of their construction). That construction is diametrically
opposed to the “demand-based access” taught in the specification. See ’326 Pat. col.6 l.66-col.7 l.2
(“Each subscriber terminal 20 can be provided with a permanent fixed access link to its central terminal
10, but in preferred embodiments demand-based access is provided, so that the number of subscribers

5

which can be supported exceeds the number of available wireless links.” (emphases added)).6
In contrast, many of the other definitions of TDM, from the same sources Defendants cite, do
not require the allocation of time in a “defined, repeated sequence” and are thus consistent with the
intrinsic record. For example, Defendants ignore the broader definition of “time-division multiplexing
(TDM)” in the same IEEE dictionary that is the source for their “defined, repeated sequence”
limitation. That definition states that TDM is simply: “[a] method by which two or more channels of
information are transmitted over the same link by allocating a different time interval for the
transmission of each channel.” Wi-LAN Br. Ex. E at 1115. Moreover, the boxcars example quoted in
Defendants’ brief is just an example. See Defs.’ Br. 14-15. The actual definition from that reference
provides that TDM involves “interleaving a piece of each signal one after another,” but does not limit
the allocation of those signals to a “defined, repeated sequence.” Defs.’ Br. Ex. 12 at 606.
The reason some dictionary definitions of TDM include a defined, repeated sequence
limitation, and others do not, is because the technique evolved over time. For example, Defendants
quote the description of an early, limited form of TDM from a 1989 Computerworld article. See Defs.’
Br. 19. But what Defendants omit is that the same article evidences that, even as early as 1989, the
ordinary meaning of TDM had broadened: “TDM now comes in a variety of forms, one of which–
statistical TDM–has become important enough to assume the dimensions of an entirely new category.
Statistical multiplexers, which dynamically allocate bandwidth so that only active devices receive a
share, have effectively taken over the low-speed end of the TDM market . . . .” Sanford Bingham,
Multiplexers, Computerworld, Nov. 27, 1989, at 61, 64 (attached as Ex. V) (emphases added). This
“statistical multiplexing” is defined, in another extrinsic source Defendants rely on, as “[a] time
6

See also ’326 Pat. col.18 l.50-54 (explaining that channelization plans established according the preferred
embodiment “ensure[] that . . . demand access services . . . are available”), col.21 l.4-col.22 l.4 (detailing the
processes for obtaining available traffic channels when establishing a call), col.23 l.5-6 (explaining that after
completing a call, the traffic channel is released so that it can be used in other wireless links).

6

division multiplexing technique in which time slots are dynamically allocated on the basis of need,
rather than on a preassigned basis.” David J. Stang, Network Security 270 (6th ed. 1992) (attached as
Ex. VI) (emphases added). By the time the patents-in-suit were filed in the mid-1990s, a person of skill
in the art would understand that “TDM techniques” as claimed therein was not limited to the allocation
of slots on a preassigned basis or in a defined, repeated sequence. This is particularly so in light of the
specification’s express teaching regarding the same. See, e.g., ’326 Pat. col.3 l.56-col.4 l.12 (describing
flexible assignment of time slots depending on the type of data to be transmitted), col.6 l.66-col.7 l.2,
col.18 l.50-54 (explaining that the preferred embodiment offers “demand based access”).
Finally, Defendants wrongly assert that data rates discussed in the specification can only be
achieved by allocating time slots in a “defined, repeated sequence.” See Defs.’ Br. 18. Data rate is an
average, expressed in the specification as kilobits per second. See, e.g., ’326 Pat. col.4 l.1. The frames
depicted in the preferred embodiments are only a tiny fraction of a second.7 It is entirely possible to
send more data in some frames (e.g., by dynamically allocating a larger time slot or multiple time slots)
and less data in others and still achieve the same data rate per second described in the specification.
4. TDM Encoder / TDM Decoder
Defendants complain that Wi-LAN’s construction wrongly excludes embodiments where
“hardware and software” are used to perform the functionality of the TDM encoder and decoder. See
Defs.’ Br. 22 (emphasis in original). As a compromise to address this concern, Wi-LAN amends its
constructions for these terms to encompass “hardware and/or software.”8 See id. (urging same).
Defendants’ argument that Wi-LAN’s construction is improper because it is “superfluous” with
the surrounding claim language is without merit. See Defs.’ Br. 22-23. Wi-LAN’s construction
7

The specification discloses embodiments with frames “typically lasting” 4 milliseconds, ’326 Pat. col.17 l.33-35,
and other embodiments where the entire frame is only 125 microseconds, id. col.15 l.44-47.
8
Wi-LAN’s amended construction for TDM encoder is “Hardware and/or software for applying TDM techniques”
and for TDM decoder is “Hardware and/or software for extracting a data item from a predetermined time slot within
the orthogonal channel.”

7

clarifies that the TDM encoder and decoder can be hardware and/or software. That much of the
remainder of Wi-LAN’s constructions follow directly from the claim language itself is no reason to
reject them in favor of Defendants’ (much less import into TDM decoder the same “defined, repeated
sequence” limitation Defendants seek with respect to “TDM techniques”). If the claim language
speaks for itself, this Court may decide that no further construction is necessary.
5. Overlay Codes
Defendants concede that “it does not matter whether the overlay code is applied . . . before or
after the orthogonal code.” Defs.’ Br. 24 n.12. And they have no response to the argument that it
likewise does not matter if the codes are applied simultaneously. See Wi-LAN Br. 20. The result of
applying these codes is precisely the same whether they are applied before, after, or simultaneously.
Defendants’ argument that applying the overlay and orthogonal codes simultaneously would
render one of the claimed encoders superfluous is incorrect. Nothing in the intrinsic record requires the
“first encoder” and “second encoder” to be separate components, or that different codes cannot be
applied simultaneously. Indeed, Figure 12 of the specification depicts the simultaneous encoding of
data using two codes with a single encoder. ’819 Pat. col.16 l.6-8 (explaining that in Figure 12, “signal
219 is combined with a code sequence signal 216 for central terminal 10 to produce the downlink 212.
Code sequence signal 216 is derived from a combination of a pseudo-random noise code signal 220
and a Rademacher-Walsh code signal 222.”)9; see also id. Figs. 7A, 7B (depicting the simultaneous
application of these codes, items 112 and 114, by spreader 116). Contrary to Defendants’ argument,
the reference to a “first encoder” and “second encoder” in the claims does not require those encoders to
be separate components. See, e.g., Linear Tech. Corp. v. Int’l Trade Comm’n, 566 F.3d 1049, 1055-56
(Fed. Cir. 2009) (holding that a claimed “second circuit” and “third circuit” need not be separate

9

A “Rademacher-Walsh code” is a type of orthogonal code. A pseudo-random noise code is not an overlay code.
Nevertheless, this example rebuts Defendants’ argument that an encoder cannot apply two codes simultaneously.

8

circuits absent a clear disavowal of non-separate circuits in the intrinsic record); Northeastern Univ. v.
Google, Inc., No. 2:07-cv-486-CE, 2010 WL 4511010, at *7 (E.D. Tex. Nov. 9, 2010) (declining to
construe “first portion” and “second portion” to be separate with no overlap).
The surrounding claim language further supports that the overlay and orthogonal codes need
not be applied in series. Claim 1 of the ’819 Patent recites: “a first encoder for combining a data item
. . . with said orthogonal code” and “a second encoder arranged to apply the overlay code . . . to said
data item.” If the claims were limited to the serial application of an overlay code after an orthogonal
code, the claims would provide “a second encoder arranged to apply the overlay code . . . to an
encoded data item output from the first encoder.” Likewise, had the inventors intended to require the
application of the overlay code before the orthogonal code, the claim would read “a second encoder
arranged to apply the overlay code . . . to a data item” and “a first encoder for combining the encoded
data item output from the second encoder . . . with said orthogonal code.” But there is no “serial or
temporal limitation” in the claim language. See Wi-LAN Br. 20 (quoting 3M Innovative Props. Co. v.
Avery Dennison Corp., 350 F.3d 1365, 1371 (Fed. Cir. 2003)).
Defendants’ argument that this term’s ordinary meaning is inherently limited to application “in
series” is based on external sources that conflict with the preferred embodiments. The general purpose
dictionary definition Defendants quote states that an “overlay” is “something laid . . . over,” i.e., applied
after, something else. See Defs. Br. 24. However, this non-technical dictionary definition expressly
contradicts the preferred embodiments, which depict the application of the overlay code before the
orthogonal code. See ’819 Pat. fig. 7A, 7B, col.12 l.23-col.13 l.50; see also Verizon Servs. Corp. v.
Vonage Holdings Corp., 503 F.3d 1295, 1305 (Fed. Cir. 2007) (refusing to adopt the ordinary meaning
of term from a dictionary definition that excluded a preferred embodiment from the scope of the
claims). Likewise none of the references that Defendants cite in footnote 10 of their brief define the

9

term “overlay code” to mean that such codes are applied in series, but not simultaneously, with another
code. These references at most provide examples of codes being applied in series with other codes. Of
course, every one of those examples is consistent Wi-LAN’s construction, which does not import a
limitation on when the overlay code must be applied. And the existence of these examples in some
external sources does not warrant the import of Defendants’ “in series” limitation into the claims.
6. Parameters pertaining to a wireless link within the cell indicative of whether that
wireless link is subject to interference from signals generated by other cells
Notwithstanding Defendants’ assertion to the contrary, see Defs.’ Br. 26, the ’327 Patent
expressly discloses that multiple readings of a single indicator can be used to monitor and reduce
interference by reducing the number of channels in the channel pool. See ’327 Pat. col.2 l.29-44
(teaching that channels can be removed from use based on bit error rate (BER) signals); id. col.2 l.4554 (teaching that channels can be removed from use based on the grade of service (GOS) signals).
Defendants’ argument that the system must analyze “multiple indicators,” see Defs.’ Br. 27, is contrary
to the express teaching that the channels can be removed to reduce interference based on a single
indicator, such as BER, exceeding a threshold value. ’327 Pat. col.2 l.29-44.
Defendants’ argument that receiving multiple BER estimates “would serve no purpose,” see
Defs.’ Br. 27, fails to account for the fact that parameters like BER change over time. The asserted
claims require an “analyzer for receiving” the claimed parameters that is “arranged to compare those
parameters with predetermined criteria and to generate an output signal dependent on that comparison.”
’327 Pat. cl. 1. An analyzer that receives, e.g., BER parameters over time, compares them to a
predetermined threshold value and outputs signals to add or remove traffic channels based on that
comparison meets this limitation. The use of “a parameter” to refer alternatively to “the bit error rate
(BER) for signals” and “a grade of service (GOS) signal” in dependent claims 2 and 3 is consistent
with this construction because it may be read to refer to “a parameter” at a given point in time.
10

Dated: April 13, 2012

Respectfully submitted,
By:

/s/David B. Weaver
Johnny Ward
Texas State Bar No. 00794818
Wesley Hill
Texas State Bar No. 24032294
WARD & SMITH LAW FIRM
111 W. Tyler Street
Longview, TX 75601
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
David B. Weaver – LEAD ATTORNEY
Texas State Bar No. 00798576
Michael A. Valek
Texas State Bar No. 24044028
Syed K. Fareed
Texas State Bar No. 24065216
Ajeet P. Pai
Texas State Bar No. 24060376
Jeffrey T. Han
Texas State Bar No. 24069870
Seth A. Lindner
Texas State Bar No. 24078862
VINSON & ELKINS LLP
2801 Via Fortuna, Suite 100
Austin, TX 78746
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Charles P. Ebertin
VINSON & ELKINS LLP
525 University Avenue, Suite 410
Palo Alto, CA 94301-1918
Tel: [phone]
[e-mail]
Attorneys for Plaintiff, Wi-LAN Inc.

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who are
deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R.
Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have
consented to electronic service were served with a true and correct copy of the foregoing by
email and/or fax, on this the 13th day of April, 2012.

/s/ David B. Weaver

12