Brief Summary: DC’s constructions of “specified connection” and “UL connections” as well as its grant of SJ of noninfringement to Apple affirmed.
Summary: Wi-LAN appealed DC grant of SJ of noninfringement to Apple regarding US 8,311,040 and 8,315,640 relating to wireless networks (introduction of “intermediary nodes” for communications between a base station and user devices). Wi-LAN alleged Apple’s iPhones infringe the asserted patents running on a 4G LTE network and that “its claimed intermediary node maps onto the baseband processor in Apple’s phone, which handles communications with the 4G network” (as opposed to a separate piece of network equipment). Wi-LAN disputed the DC’s constructions of the claim terms “specified connection” (‘040 patent; the DC agreed with Apple’s proposed construction “the communications link between a[n intermediary] node and a specified end user”) and “UL connections” (‘640 patent; the DC agreed with Apple’s proposed construction “an uplink connection between the [intermediary mode] and its users”). The FC panel explained that “[b]ecause only substantive issues before us are ones of claim construction, our review falls entirely under the Teva standard” (Convolve, FC 2016). The FC panel considered “whether ‘specified connection’ excludes embodiments where the intermediary node can maintain only one ‘specified connection’” and began its “analysis with the words of the claim itself as an ordinary artisan would have understood them at the time of the invention” (Phillips, FC 2005), finding “no clues” from this “as to whether the invention excludes [such] embodiments” (but later writing that “the claims’ discussion of allocating bandwidth based on a specified connection’s priority…support[s] the [DC’s] conclusion”). The parties agreed the specification does not explicitly define the term and the FC panel found that “it never describes a system with only one specified connection” (“Consistent use of a term in a particular way in the specification can inform the proper construction of that term.” Virnetx, FC 2014; SkinMedica, FC 2013). The FC panel disagreed the use of “the singular terms ‘a specified connection’ and ‘the specified connection’” during prosecution “refer to any scheme where a node maintains a single ‘specified connection’” but “[i]nstead…use the singular to point to one particular specified connection out of multiple ones.” The DC’s construction of “specified connection” was therefore affirmed.
Regarding “UL connections”, the FC panel waived Apple’s argument that the DC abused its discretion in considering Wi-LAN’s “new construction” at a late stage of litigation (“We…support a [DC’s] discretion to permit parties to change their positions over the course of litigation…‘rolling claim construction’” is permitted, as are amendments to invalidity contentions. Mortg. Grader, FC 2016) The parties agreed “UL” means “uplink” and “refers to a direction of data flow from user devices through intermediary nodes to the base station”, but disagreed as to whether that flow is between “a user and its intermediary node” or “an intermediary node and its base station.” The parties also agreed the plain meaning of the claims was not helpful so the FC panel first looked to the specification, concluding the term was not explicitly defined therein. And “viewing the patent as a whole as well as the prosecution history”, it concluded the term “refer[s] to the intermediary node’s connections with user devices, not the base station” (e.g., “a patentee’s representation about claim language limits that language even if it is later deleted and added elsewhere” (Watts, FC 2000)). The FC panel also disagreed with Wi-LAN’s claim differentiation argument since, e.g., “[c]laim differentiation cannot ‘overcome…a contrary construction dictated by the written description or prosecution history” (Marine Polymer, FC 2012) or “apply untethered from the reasonably meaning of the difference in claim language on which it rests” (Curtiss-Wright, FC 2006). Thus, it also affirmed the DC’s construction of “UL connections” and its grant of SJ of noninfringement to Apple.