Case: 22-1063 Document: 56 Page: 1 Filed: 10/19/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WSOU INVESTMENTS LLC, DBA BRAZOS
LICENSING AND DEVELOPMENT,
Plaintiff-Appellant
v.
GOOGLE LLC,
Defendant-Appellee
______________________
2022-1063
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 6:20-cv-00574-ADA, Judge
Alan D. Albright.
-------------------------------------------------
WSOU INVESTMENTS LLC, DBA BRAZOS
LICENSING AND DEVELOPMENT,
Plaintiff-Appellant
v.
GOOGLE LLC,
Defendant-Appellee
______________________
2022-1065
Case: 22-1063 Document: 56 Page: 2 Filed: 10/19/2023
2 WSOU INVESTMENTS LLC v. GOOGLE LLC
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 6:20-cv-00578-ADA, Judge
Alan D. Albright.
______________________
Decided: October 19, 2023
______________________
NATHAN K. CUMMINGS, Koide IP Law PLLC, Arlington,
VA, argued for plaintiff-appellant. Also represented by
BRIAN MATTHEW KOIDE; SEAN D. BURDICK, Burdick Pa-
tents, PA, Boise, ID.
ISRAEL SASHA MAYERGOYZ, Jones Day, Chicago, IL, ar-
gued for defendant-appellee. Also represented by JOHN R.
BOULE, III, EDWIN GARCIA, TRACY A. STITT, JENNIFER L.
SWIZE, Washington, DC; THARAN GREGORY LANIER, Palo
Alto, CA.
______________________
Before LOURIE, LINN, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
WSOU Investments LLC, dba Brazos Licensing and
Development (WSOU) appeals from a judgment of the U.S.
District Court for the Western District of Texas that con-
strued certain claim terms in U.S. Patent Nos. 8,965,045
and 9,335,825 in means-plus-function format and thus sub-
ject to 35 U.S.C. § 112 ¶ 6 1 and held those claims indefinite
1 The Leahy-Smith America Invents Act (AIA) redes-
ignated § 112 ¶¶ 2 and 6 as, respectively, § 112(b) and (f).
Leahy-Smith America Invents Act, Pub. L. No. 112-29, sec.
4(c), 125 Stat. 284, 296 (2011). We refer to the pre-AIA ver-
sion because the applications resulting in the ’045 and ’825
Case: 22-1063 Document: 56 Page: 3 Filed: 10/19/2023
WSOU INVESTMENTS LLC v. GOOGLE LLC 3
under that construction. For the below reasons, we affirm
the district court’s decision as to the ’045 patent, but re-
verse its decision as to the ’825 patent and remand for fur-
ther proceedings.
BACKGROUND
The ’045 patent relates to image tracking and capture.
Claims 1–17 are at issue on appeal. The claim limitation
at issue is “processor configured to” perform certain func-
tional language, which appears in claim 1 as follows:
1. An apparatus comprising:
a viewfinder display configured to display a first
and second picture;
a processor configured to move automatically a
sub-set of pixels defining a target captured image
that corresponds to the first picture, within a larger
set of available pixels in a direction of an edge of
the target captured image when a defined area of
interest within the target captured image ap-
proaches the edge of the target captured image,
said processor configured to provide a pre-emp-
tive user output when the sub-set of pixels ap-
proaches an edge of the set of available pixels, and
the second picture corresponds to the larger set of
available pixels,
wherein the viewfinder display is configured to dis-
play the first picture within the second picture.
patents were filed before September 16, 2012. See id.
sec. 4(e), 125 Stat. at 297; see also Media Rights Techs.,
Inc. v. Cap. One Fin. Corp., 800 F.3d 1366, 1371 n.1
(Fed. Cir. 2015).
Case: 22-1063 Document: 56 Page: 4 Filed: 10/19/2023
4 WSOU INVESTMENTS LLC v. GOOGLE LLC
’045 patent col. 14 l. 65–col. 15 l. 13 (emphases added to
highlight disputed limitation).
The ’825 patent relates to controlling a device using
gestures. Claims 1–2 and 12 are at issue on appeal. The
claim limitation at issue is “at least one memory including
computer program code, where the at least one memory
and the computer program code are configured, with the at
least one processor to cause the apparatus to” perform cer-
tain functional language, which appears in claim 1 as fol-
lows:
1. An apparatus comprising:
at least one processor; and
at least one memory including computer pro-
gram code, where the at least one memory and
the computer program code are configured,
with the at least one processor, to cause the
apparatus to at least:
detect that an application is being started
on the apparatus;
in response to the application being started
on the apparatus, turn on a continuous
wave doppler radar at the apparatus and
transmit radio signals that comprise the
continuous wave doppler radar, wherein
the radio signals are at least partially re-
flected by a human body of a user of the ap-
paratus;
receive the transmitted radio signals after
having been at least partially reflected by a
gesture by the human body of the user;
detect in the received radio signals a prede-
termined time-varying modulation caused
by the gesture by the human body of the
user and that is present in a modulation of
Case: 22-1063 Document: 56 Page: 5 Filed: 10/19/2023
WSOU INVESTMENTS LLC v. GOOGLE LLC 5
the received radio signals as compared to a
modulation of the transmitted radio sig-
nals, wherein detecting the predetermined
time-varying modulation of the received
signal comprises detecting a doppler fre-
quency shift in the continuous wave dop-
pler radar of the radio signals transmitted
from the apparatus, wherein the doppler
frequency shift comprises a frequency mod-
ulated continuous wave variation caused
by the gesture by the human body of the
user;
associate the detected predetermined time-
varying modulation with a predetermined
user input command; and
based on the associated predetermined
user input command control at least one
operation of the application on the appa-
ratus.
’825 patent col. 10 ll. 29–61 (emphasis added to highlight
disputed limitation).
In its claim construction order, the district court eval-
uated whether each of these limitations was in means-plus-
function format subject to § 112 ¶ 6 and, if so, whether the
respective specifications disclosed adequate corresponding
structure to avoid indefiniteness under § 112 ¶ 2. See
WSOU Invs. LLC v. Google LLC, No. 6-20-cv-00574-ADA,
ECF No. 61 (W.D. Tex. Mar. 9, 2022) (“Claim Construction
Order”). The district court determined that the disputed
limitations in both patents were written in means-plus-
function format; that those claims were therefore subject to
§ 112 ¶ 6; that the patents’ specifications did not disclose
corresponding structure to perform the claimed functions;
and, thus, that the claims were indefinite under 35 U.S.C.
§ 112. Claim Construction Order at 26–32, 37–41.
Case: 22-1063 Document: 56 Page: 6 Filed: 10/19/2023
6 WSOU INVESTMENTS LLC v. GOOGLE LLC
Based on the district court’s claim construction, the
parties stipulated to final judgment that claims 1–17 of the
’045 patent and claims 1–2 and 12 of the ’825 patent are
invalid as indefinite. WSOU timely appealed. We have ju-
risdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
“Regarding questions of claim construction, including
whether claim language invokes [§ 112 ¶ 6], the district
court’s determinations based on evidence intrinsic to the
patent as well as its ultimate interpretations of the patent
claims are legal questions that we review de novo.” Wil-
liamson v. Citrix Online, LLC, 792 F.3d 1339, 1346
(Fed. Cir. 2015) (en banc) (citing Teva Pharm. USA, Inc.
v. Sandoz, Inc., 574 U.S. 318, 331 (2015)). “To the extent
the district court, in construing the claims, makes underly-
ing findings of fact based on extrinsic evidence, we review
such findings of fact for clear error.” Id.
A means-plus-function claim construction analysis in-
volves a two-step process. Dyfan, LLC v. Target Corp.,
28 F.4th 1360, 1365 (Fed. Cir. 2022) (citing Williamson,
792 F.3d at 1349–51). First, we determine whether the dis-
puted limitation is drafted in means-plus-function format,
i.e., “whether [or not] it connotes sufficiently definite struc-
ture to a person of ordinary skill in the art.” Id. If the
claim limitation does connote sufficiently definite struc-
ture, it is not written in means-plus-function format and
§ 112 ¶ 6 does not apply. However, if the claim limitation
is written in means-plus-function format, we continue to
step two, which requires us to determine “what structure,
if any, disclosed in the specification corresponds to the
claimed function.” Williamson, 792 F.3d at 1351.
When, as is the case here, the disputed limitation does
not include the word “means,” there is a rebuttable pre-
sumption that the limitation is not drafted in means-plus-
function format. Dyfan, 28 F.4th at 1365. This presump-
tion “can be overcome and § 112 [¶] 6 will apply if the
Case: 22-1063 Document: 56 Page: 7 Filed: 10/19/2023
WSOU INVESTMENTS LLC v. GOOGLE LLC 7
challenger demonstrates that the claim term fails to ‘re-
cite[] sufficiently definite structure’ or else recites ‘function
without reciting sufficient structure for performing that
function.’” Williamson, 792 F.3d at 1348–49 (citing Watts
v. XL Sys., Inc., 232 F.3d 877, 880 (Fed. Cir. 2000)).
On appeal, in both cases, WSOU makes two argu-
ments—first, that the district court erred in concluding
that the disputed claim limitations invoke § 112 ¶ 6; and
second, that the district court erred in concluding that the
specification fails to disclose adequate structure corre-
sponding to the claimed function. We address each argu-
ment in turn for both patents.
I
First, we address the ’045 patent. Claim 1 of that pa-
tent requires, among other things, a “processor,” “said pro-
cessor configured to provide a pre-emptive user output
when the sub-set of pixels approaches an edge of the set of
available pixels.” ’045 patent col. 15 ll. 1, 7–9. As the dis-
trict court correctly noted, and both parties agree on ap-
peal, this claim limitation is presumed not to be in means-
plus-function format because it lacks the word “means.”
Williamson, 792 F.3d at 1349 (explaining that the pre-
sumption exists but is not “strong”).
To rebut this presumption, Google relied on the ’045
patent specification, which provides a vague understand-
ing of what the structure of the claimed “processor” is, re-
ferring to hardware, software, or essentially anything else
that could perform the claimed functions. The district
court agreed with Google, determining that this limitation
“recites purely functional language.” Claim Construction
Order at 31. Specifically, the court found that “the lan-
guage of the patent leads to the conclusion that ‘processors’
is meant to generically be anything that manipulates
data.” Id. (cleaned up).
Case: 22-1063 Document: 56 Page: 8 Filed: 10/19/2023
8 WSOU INVESTMENTS LLC v. GOOGLE LLC
We see no error in the court’s determination that the
term “processor” in the claims of the ’045 patent does not
recite sufficiently definite structure. To be sure, the term
“processor” is not a nonce word and, in some circumstances,
the term would connote sufficient structure. As we have
explained, however, the applicability of § 112 ¶ 6 depends
on the specific context of the patent at issue. Williamson,
792 F.3d at 1350–51 & n.5; see also Advanced Ground Info.
Sys. Inc. v. Life360, Inc., 830 F.3d 1341, 1348 (Fed. Cir.
2016) (analyzing whether a claim term is in means-plus-
function format by looking to the “combination of the terms
as used in the context of the relevant claim language”) (em-
phasis added). As such, there is no categorical rule regard-
ing whether the term “processor” connotes sufficient
structure to avoid interpretation in means-plus-function
format. Indeed, district courts have found some uses of
“processor” connote sufficient structure while others do
not. See, e.g., St. Isodore Research, LLC v. Comerica Inc.,
No. 2:15-cv-1390, 2016 WL 4988246, at *15 (E.D. Tex.
Sept. 18, 2016) (stating that the court has “typically found
‘processor’ to connote sufficient structure to avoid the ap-
plication of § 112, ¶ 6” but nonetheless construing the par-
ticular “processor” claim limitation at issue as a means-
plus-function limitation). Instead, each claim term must
be construed on its own in light of the intrinsic and extrin-
sic evidence of record.
In this case, as the district court correctly noted, the
specification treats the word “processor” so broadly as to
generically be any structure that manipulates data. The
specification states that “[i]mplementation of the processor
4 can be in hardware alone . . ., have certain aspects in soft-
ware including firmware alone or can be a combination of
hardware and software (including firmware),” ’045 patent
col. 13 ll. 6–9; see also id. col. 14 ll. 7–21 (repeating same),
and that the “processor 4 may be implemented using in-
structions that enable hardware functionality, for example,
by using executable computer program instructions in a
Case: 22-1063 Document: 56 Page: 9 Filed: 10/19/2023
WSOU INVESTMENTS LLC v. GOOGLE LLC 9
general-purpose or special-purpose processing unit that
may be stored on a computer readable storage medium . . .
to be executed by such a processing unit,” id. col. 13 ll. 10–
15. In other words, the specification teaches that the pro-
cessor could be software, hardware, or a combination of the
two. Other references to the “processor” in the specification
describe it only in terms of its function, i.e., what it does—
stating the processor “is configured to” accomplish various
goals. See, e.g., ’045 patent col. 5 ll. 1–2, 26–36. In the con-
text of this claim, this specification, and this specific inven-
tion, “processor” is so generically and functionally
described as to fail to convey a sufficiently definite meaning
as a name for a structure. See Williamson, 792 F.3d
at 1349. We therefore agree with the district court’s deter-
mination that this claim limitation is written in means-
plus-function format and is thus subject to the require-
ments of § 112 ¶ 6.
Having found that the claim limitation was written in
means-plus-function format, we move to step two of the
§ 112 ¶ 6 inquiry, which asks whether the specification ad-
equately discloses an algorithm for performing the claimed
function. Claim Construction Order at 32 (citing Function
Media, LLC v. Google, Inc., 708 F.3d 1310, 1318 (Fed. Cir.
2013) (“When dealing with a ‘special purpose computer-im-
plemented means-plus-function limitation,’ we require the
specification to disclose the algorithm for performing the
function.”)).
WSOU argues for the first time on appeal that the spec-
ification discloses corresponding structure. Before the dis-
trict court, WSOU did not present an argument on step
two. In other words, WSOU did not dispute Google’s argu-
ment that, if the claim was written in means-plus-function
format, the specification does not disclose corresponding
structure and thus the claims are indefinite. As we have
explained, “argument[s] . . . not timely raised before the
district court . . . [are] waived.” Cordis Corp. v. Bos. Sci.
Corp., 561 F.3d 1319, 1337 (Fed. Cir. 2009). Accordingly,
Case: 22-1063 Document: 56 Page: 10 Filed: 10/19/2023
10 WSOU INVESTMENTS LLC v. GOOGLE LLC
we will not consider WSOU’s argument presented for the
first time on appeal.
We thus affirm the district court’s determination that
because the “processor” limitation in independent claim 1
of the ’045 patent invokes § 112 ¶ 6 and the specification
does not disclose corresponding structure, claims 1–17 are
indefinite under § 112 ¶ 2.
II
Next, we address the ’825 patent. The limitation at is-
sue in the asserted claims of this patent is “at least one
memory and the computer program code are configured,
with the at least one processor, to cause the apparatus to”
accomplish various functions. ’825 patent col. 10 ll. 31–34.
Like the previous claim limitation, this limitation receives
the benefit of the presumption that it is not in means-plus-
function format because it lacks the word “means.” Wil-
liamson, 792 F.3d at 1349. Unlike the previous claim lim-
itation, however, we conclude that Google has not rebutted
the presumption. Google asserts that the collective
“memory,” “computer program code,” and “processor” terms
convey no “structural character” to a person of ordinary
skill in the art and that they are understood “solely by the
different functions they are assigned to perform.” No. 1065
Appellee’s Br. 24. We disagree.
In light of the intrinsic record in this case, we conclude
that a person of ordinary skill in the art would understand
the structure of the claimed “computer program code,”
“memory,” and “processor.” First, the claim language itself
provides structural guidance. For example, the claim lim-
itation at issue requires “at least one memory including
computer program code,” which is configured “with the at
least one processor” to perform various tasks. ’825 patent
col. 10 ll. 31–34. WSOU asserts that a person of ordinary
skill in the art reading the claim in light of the specification
would understand that the recited computer program code
is stored in a memory structure and running on the
Case: 22-1063 Document: 56 Page: 11 Filed: 10/19/2023
WSOU INVESTMENTS LLC v. GOOGLE LLC 11
processor. No. 1065 Appellant’s Br. 18. We agree. The
disputed claim limitation recites multiple elements and
their connections to one another. Though terms like “com-
puter program code,” “memory,” and “processor” may be
broad, the recited combination of these multiple broadly
named structures informs the skilled artisan’s relative un-
derstanding of what each structure is and what it is not, as
well as how the various structures relate to one another.
Our precedent supports this conclusion. We have ex-
plained that claim limitations like the recited “computer
program code,” when combined with a description of what
the code is intended to accomplish, convey definite struc-
ture to the ordinarily skilled artisan. For example, in Zero-
click, LLC v. Apple Inc., 891 F.3d 1003 (Fed. Cir. 2018), the
district court found that the claim limitations “program”
and “user interface code” were in means-plus-function for-
mat. Id. at 1006–07. We reversed, explaining that the
skilled artisan would have been able to “reasonably discern
from the claim language” that the limitations were refer-
ences to conventional programs or code “existing in [the]
prior art at the time of the invention,” not just “generic
terms or black box recitations of structure or abstractions.”
Id. at 1008. Similarly, in Dyfan v. Target Corp., 28 F.4th
1360 (Fed. Cir. 2022)—reversing the district court—we ex-
plained that “[u]nlike in the mechanical arts, the specific
structure of software code and applications is partly de-
fined by its function.” Id. at 1368. For software-related
claim limitations, like “code,” we explained that “we can
look beyond the initial ‘code’ . . . term to the functional lan-
guage to see if a person of ordinary skill would have under-
stood the claim limitation as a whole to connote sufficiently
definite structure.” Id. As for the term “memory,” Google
has not cited any cases holding that the term “memory” is
a nonce term or devoid of sufficient structure so as to in-
voke § 112 ¶ 6 and we are aware of no such cases.
The specification provides further support for our con-
clusion. In contrast to the ’045 patent, the specification
Case: 22-1063 Document: 56 Page: 12 Filed: 10/19/2023
12 WSOU INVESTMENTS LLC v. GOOGLE LLC
here describes the “processor” as hardware that runs the
computer program code. Specifically, the specification
teaches that the term “processor” is synonymous with
terms like controller and computer and “should be under-
stood to encompass not only computers having different ar-
chitectures such as single/multi-processor architectures
and sequential (Von Neumann)/parallel architectures but
also specialized circuits such as field-programmable gate
arrays (FPGA), application specific circuits (ASIC), signal
processing devices and other devices.” ’825 patent col. 5,
ll. 50–58.
The specification also discloses that the memory stores
a computer program comprising computer program in-
structions. Id. col. 5, ll. 24–25. The specification then
states that the computer program instructions “provide the
logic and routines that enable[] the apparatus to perform
the methods” described in the patent. ’825 patent col. 5
ll. 31–33. And the claimed “computer program” can be
found, the specification explains, in commercially-available
and well-known formats, including “a computer-readable
storage medium, a computer program product, a memory
device, [or] a record medium such as a CD-ROM or DVD,”
id. col. 5 ll. 35–39, exactly the type of “references to conven-
tional . . . programs or code, existing in prior art at the time
of the inventions” that we explained provided structural
detail in Zeroclick. 891 F.3d 1008.
On this record, Google has not presented any contrary,
“more compelling evidence of the understanding of one of
ordinary skill in the art,” Apex, 325 F.3d at 1373, to rebut
the presumption that this claim limitation is not in means-
plus-function format. We therefore reverse the district
court’s determination regarding this claim limitation and
remand for further proceedings.
CONCLUSION
We have considered both parties’ remaining arguments
and find them unpersuasive. For the foregoing reasons, we
Case: 22-1063 Document: 56 Page: 13 Filed: 10/19/2023
WSOU INVESTMENTS LLC v. GOOGLE LLC 13
affirm the district court’s indefiniteness decision regarding
the ’045 patent, and we reverse the district court’s indefi-
niteness decision regarding the ’825 patent and remand for
further proceedings.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND
REMANDED
COSTS
No costs.