Case 3:14-cv-02235-DMS-BLM Document 163 Filed 09/07/17 PageID.5195 Page 1 of 30
`
`
`
`
`
`Allison H. Goddard (211098)
` ali@pattersonlawgroup.com
`PATTERSON LAW GROUP
`402 West Broadway, 29th Floor
`San Diego, CA 92101
`(619) 398-4760
`(619) 756-6991 (facsimile)
`
`Attorneys for Defendant,
`Wi-LAN Inc.
`
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`SAN DIEGO DIVISION
`
`APPLE INC,
`
`Plaintiff,
`
`vs.
`
`WI-LAN INC.
`
`
`Defendant.
`
`
`
`
`WI-LAN INC,
`
`Plaintiff,
`
`vs.
`
`APPLE INC,
`
`Defendant.
`
`
`No.: 3:14-cv-2235-DMS-BLM;
`Consolidated with 3:14-cv-01507-DMS-
`BLM
`DEMAND FOR JURY TRIAL
`
`Wi-LAN’S OPENING CLAIM
`CONSTRUCTION BRIEF
`
`
`Department: 13A
`Judge: Hon. Dana M. Sabraw
`Magistrate Judge: Hon. Barbara L. Major
`Complaint Filed: June 19, 2014
`Hearing: October 30, 2017 at 9:00 a.m.
`
`
`
`
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`WI-LAN’S OPENING CLAIM CONSTRUCTION BRIEF; CASE NO. 3:14-cv-2235
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`Case 3:14-cv-02235-DMS-BLM Document 163 Filed 09/07/17 PageID.5196 Page 2 of 30
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`I.
`II.
`
`TABLE OF CONTENTS
`BACKGROUND ............................................................................................. 1
`TERMS CONSTRUED IN THE ’798 CASE ................................................. 4
` Packing Sub-Header ................................................................................... 4 1.
`
`a.
`Issue Preclusion Bars Apple’s Relitigation of This Issue .......... 4
`b.
`There Is No Basis on the Merits for Relitigation of This
`Issue ............................................................................................ 5
`
` QoS ............................................................................................................. 6 2.
`a.
`Issue Preclusion Bars Apple’s Relitigation of This Issue .......... 6
`b.
`There Is No Basis on the Merits for Relitigation of This
`Issue ............................................................................................ 7
`
` Queue(s) ..................................................................................................... 9 3.
`a.
`Issue Preclusion Bars Apple’s Relitigation of This Issue .......... 9
`b.
`There Is No Basis on the Merits for Relitigation of This
`Issue ............................................................................................ 9
`
` Wireless Subscriber Unit (And Related Terms) ...................................... 11 4.
`a.
`Issue Preclusion Bars Apple’s Relitigation of This Issue ........ 11
`b.
`There Is No Basis on the Merits for Relitigation of This
`Issue .......................................................................................... 13
`
` Uplink Connections (And Related Terms) .............................................. 17 5.
`a.
`Issue Preclusion Bars Apple’s Relitigation of This Issue ........ 17
`b.
`There Is No Basis on the Merits for Relitigation of This
`Issue .......................................................................................... 18
`III. OTHER TERMS ........................................................................................... 19
` Poll-Me Bit / Poll-Me Message ............................................................... 19 1.
`
`
` Preamble of Claim 26 of the ’145 Patent ................................................. 22 2.
`
` Sub-Frame Map / Frame Map .................................................................. 23 3.
`
` Fairness Algorithm ................................................................................... 25 4.
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`Case 3:14-cv-02235-DMS-BLM Document 163 Filed 09/07/17 PageID.5197 Page 3 of 30
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`TABLE OF AUTHORITIES
`
`
`CASES
`Allen Eng'g Corp. v. Bartell Indus., Inc.,
`299 F.3d 1336 (Fed. Cir. 2002) .......................................................................... 22
`
`Page(s)
`
`Am. Med. Sys., Inc. v. Biolitec, Inc.,
`618 F.3d 1354 (Fed. Cir. 2010) .......................................................................... 22
`
`Campion v. Old Republic Home,
`2011 WL 1935967 (S.D. Cal. May 20, 2011) ...................................................... 5
`
`Catalina Mktg. Int'l, Inc. v. Coolsavings.com, Inc.,
`289 F.3d 801 (Fed. Cir. 2002) ............................................................................ 22
`
`e.Digital Corp. v. Futurewei Tech.,
`772 F.3d 723 (Fed. Cir. Nov. 19, 2014) ...................................................... passim
`
`e.Digital Corp. v. Huawei Tech.,
`No. 3:13-cv-783-DMS (S.D. Cal. Aug. 21, 2013) ............................................... 4
`
`Honeywell Int’l. v. Universal Avionics Sys.,
`493 F.3d 1358 (Fed. Cir. 2007) ............................................................................ 7
`
`IMS Tech., Inc. v. Haas Automation, Inc.,
`206 F.3d 1422 (Fed. Cir. 2000) .......................................................................... 22
`
`Int’l Gamco Inc., v. Multimedia Games Inc.,
`732 F. Supp. 2d 1082 (S.D. Cal. Aug. 11, 2010) ................................................. 4
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ................................................................... passim
`
`Symantec Corp. v. Computer Assocs. Int’l, Inc.,
`522 F.3d 1279 (Fed. Cir. 2008) .......................................................................... 23
`
`Thorner v. Sony Computer Entm’t Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012) .......................................................................... 13
`
`Unwired Planet v. Apple Inc.,
`829 F. 3d 1353 (Fed. Cir. 2016) ............................................................... 7, 10, 12
`
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`Case 3:14-cv-02235-DMS-BLM Document 163 Filed 09/07/17 PageID.5198 Page 4 of 30
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`Most of the claim construction issues in this case have already been decided
`by this Court in Wi-LAN v. Apple, No. 13-cv-798-DMS-BLM (S.D. Cal.) (“’798
`Case” or “’798”). The ’798 Case involved overlapping patents, the same
`inventors, and the same 4G product development activities. Five of the ten terms
`at issue here were construed, or stipulated-to, in the ’798 Case in either the same
`patent or a patent with the same specification. While Wi-LAN seeks the ’798 Case
`constructions, Apple ignores the Court’s Orders and resurrects claim construction
`arguments that were extensively litigated, including in a Markman Order (’798,
`Dkt. 98) (Ex. A), Clarification Order (’798, Dkt. 123) (Ex. B), and Reconsideration
`of the Clarification Order (’798, Dkt. 134) (Ex. C), and rejected by the Court as
`inconsistent with the intrinsic record.1 The claim construction issues in the ’798
`Case are the same issues here, and there was a final judgment in the ’798 Case.
`Therefore, issue preclusion (collateral estoppel) applies to at least five terms in this
`case, and the Court should hold Apple to the ’798 constructions.
`I.
`BACKGROUND
`This case involves six patents-in-suit.2 The ’798 Case involved the ’040
`patent-in-suit and another patent, U.S. Patent No. 8,315,640 (“’640 patent”), which
`is a parent or sister patent to the ’723, ’145, ’020, and ’761 patents-in-suit. This
`case also involves a ’757 patent-in-suit that shares inventors and was developed by
`the same wireless engineering group that developed the other patents-in-suit.
`All the patents-in-suit relate to advanced 4G wireless technologies that
`originated in work by Ken Stanwood, Wi-LAN’s current Chief Technology Officer
`(CTO) and inventor on all patents-in-suit, and his team while at Ensemble
`Communications focused on developing 4G products. Ensemble was a San Diego
`product company founded in 1997 as a start-up that Mr. Stanwood helped grow
`
`1 All exhibits are attached to the Declaration of Kevin Schubert filed herewith.
`2 The patents-in-suit are U.S. Patent Nos. 8,311,040 (“’040”); 8,462,723 (“’723”;
`8,457,145 (“’145”); 8,615,020 (“’020”); 8,462,761 (“’761”); 8,537,757 (“’757”).
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`(then as Ensemble’s CTO) to over 200 engineers, scientists, and support personnel.
`Wi-LAN and Ensemble worked together to extend the capabilities of Wi-LAN’s
`pioneering Wideband OFDM (Orthogonal Frequency Division Multiplexing)
`technology from Wi-Fi to 4G cellular through the 4G WiMAX Forum. The
`WiMAX Forum was co-founded by Wi-LAN, Ensemble, and Nokia around 2001
`to promote the development of a 4G cellular standard and products. Wideband
`OFDM is the radio frequency (“RF”) technology that makes high-speed wireless
`possible. It was a “wired” world before Wi-LAN’s Wideband OFDM invention.3
`In 2004, Wi-LAN began acquiring Ensemble’s assets and engineers.
`Mr. Stanwood and his team developed advanced 4G cellular technologies
`that were implemented in the 4G WiMAX cellular standard—Mr. Stanwood was a
`principal drafter of the original specification and Vice-Chair of the IEEE
`committee responsible for the first 4G cellular standard. Many of these
`technologies were subsequently adopted for use in the 4G LTE cellular standard
`used in today’s 4G mobile devices. According to Intel, a supplier of Apple’s 4G
`LTE chips, “WiMAX and LTE are 80% to 85% the same.” Ex. D.4 The advanced
`4G technologies Mr. Stanwood and his team developed include:
` (1) Bandwidth-on-demand
`technologies enabling 4G cellular devices
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`3 See, e.g., Ex. P (Time Magazine April 2000 article) (“Wi-LAN is rapidly
`becoming a world leader in broadband wireless communications.”); Ex. Q
`(Maclean’s July 2000 article) at 40 (“Wi-LAN is one of those next-generation
`companies. Its technology may well become the base of what some call the
`coming wireless revolution.”); Ex. R (Scientific American October 2000 article) at
`57 (“[W]ireless multiplexing hasn’t been exploited for cellular systems . . . That
`may change soon . . . Wi-LAN holds a number of key patents for. . . W-OFDM.”).
`4 The cellular network providers (Verizon, AT&T, etc.) developed the LTE
`standard so that the 4G cellular technologies in the 4G WiMAX standard could be
`integrated with their existing 2G and 3G networks, allowing for the gradual roll-
`out of 4G network infrastructure (a costly endeavor) and phase out of 2G and 3G
`network infrastructure, now scheduled to be completely phased out by 2020.
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`(smartphones and other mobile devices) to request exactly the bandwidth they
`need, when they need it, in real-time, so that mobile devices simultaneously have
`high-speed wireless access anywhere, anytime (unlike in Wi-Fi where devices
`must be within a few hundred feet of a Wi-Fi router and can only access the router
`one device at a time) (e.g., the ’020 patent);
` (2) Periodic bandwidth request technologies enabling 4G cellular devices to
`have reliable operation of the bandwidth request functionality using timers,
`including to efficiently manage bandwidth-on-demand requests (e.g., ’145 patent);
` (3) Multi-connection QoS and multi-queue QoS technologies enabling 4G
`cellular devices to support voice and high-speed data connections simultaneously,
`without sacrificing Quality of Service (QoS) or otherwise degrading the user
`experience, whether in making a phone call or using one or more of the data
`applications (“apps”) running on a smartphone (e.g., ’723 and ’761 patents);
` (4) Voice and data packing and fragmenting technologies enabling 4G
`cellular devices to efficiently utilize the available bandwidth granted in response to
`a request by packing and fragmenting voice and app data in the form of SDUs
`(service data units) into PDUs (protocol data units), i.e., into more efficient digital
`payloads (or “trucks”) that may be modulated (“ride”) on a wireless signal (e.g.,
`Wideband OFDM signal) (e.g., ’040 patent).
` (5) Adaptive modulation technologies enabling 4G cellular devices to reliably
`send and receive voice and high-speed app data modulated on a wireless signal
`(e.g., Wideband OFDM signal), regardless of changes in interference, noise, and
`mobile “road” conditions. Road conditions over a wireless channel change
`constantly due to weather, buildings, and other circumstances (e.g., ’757 patent).
`The efforts of Mr. Stanwood and his team in developing these advanced 4G
`technologies have enabled 4G mobile devices to support a variety of popular
`services, such as voice, conversational video, live streaming of video and music,
`real-time gaming, video and photo sharing, and email all in the palm of one’s hand.
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`II. TERMS CONSTRUED IN THE ’798 CASE
`
`Packing Sub-Header (’040 Patent)
`1.
`’798 Case
`Claim Term
`Wi-LAN’s
`Apple’s
`Construction
`Construction
`Construction
`a header located in a
`a header located in a
`a header located in
`packing
`PDU
`PDU
`sub-header
`a PDU payload
`
`Apple seeks reconsideration of the Court’s twice prior denial that the
`
`“packing sub-header” in the ’040 patent claims must be located in the “payload.”
`Ex. B (Clarification Order) at 3-4; Ex. C (Reconsideration Order) at 2-3. The
`Court considered extensive briefing on this issue in the ’798 Case, held a separate
`hearing and issued an order (Ex. B), considered reconsideration briefing, and
`issued a second order (Ex. C) again denying Apple’s argument. The Court should
`deny Apple’s attempt to relitigate this issue for the third time.
`a. Issue Preclusion Bars Apple’s Relitigation of This Issue
`Issue preclusion applies when (1) the issue necessarily decided at the
`previous proceedings is identical to the one sought to be relitigated; (2) the first
`proceeding ended with a final judgment on the merits; and (3) the party against
`whom issue preclusion is asserted was a party or in privity with a party at the first
`proceeding. e.Digital Corp. v. Huawei Tech., No. 3:13-cv-783-DMS (S.D. Cal.
`Aug. 21, 2013) (Ex. E). In the Ninth Circuit, issue preclusion applies broadly to
`claim constructions following a final judgment. Int’l Gamco Inc., v. Multimedia
`Games Inc., 732 F. Supp. 2d 1082, 1089-92 (S.D. Cal. Aug. 11, 2010) (rejecting
`the argument that issue preclusion only applies to a claim construction that is “a
`critical and necessary part of the judgment.”)
`Here, the issue is identical to the one in the ’798 Case that Apple had a full
`and fair opportunity to litigate, and the ’798 Case ended in final judgment.
`Therefore, issue preclusion applies. Id.; Ex. E (e.Digital Order) at 2-5 (affirmed in
`relevant part by e.Digital Corp. v. Futurewei Tech., 772 F.3d 723, 726 (Fed. Cir.
`Nov. 19, 2014)).
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`b. There Is No Basis on the Merits for Relitigation of This Issue
`In any event, Apple cannot meet the heavy burden of showing the Court’s
`
`prior decisions were clearly erroneous, which means “more than just maybe or
`probably wrong; it must be dead wrong.” Campion v. Old Republic Home, 2011
`WL 1935967, at *1 (S.D. Cal. May 20, 2011). Apple identifies no new evidence or
`arguments and instead re-hashes its same arguments. As the Court stated:
`Because a ‘packing sub-header’ may include an FSN or a FC
`field, and an FSN or FC field may be included in the PDU
`header, there appears to be a possibility that the ‘packing sub-
`header’ could also be included in the PDU header.
`Ex. C at 3. As the Court correctly found, and as the claims recite, a packing sub-
`header may
`include an FSN (“fragment sequence number”) or a FC
`(“fragmentation control”) field. Ex. B at 4 (“Dependent claims 4, 5, 11 and 12
`state a packing sub-header may comprise a fragment sequence number (‘FSN’) or
`a fragmentation control (‘FC’) field.”). Further, as the Court correctly found, the
`FSN or FC field are taught to be part of the PDU header: “Figure 8 clearly shows
`both a FSN and FC field in the PDU header, not in the PDU payload.” Id.; see also
`’040, Col. 11:61-12:10; 11:41-43; Fig. 8 (PDU header 810).
`
`The prosecution history further shows that packing sub-headers are not
`confined to the payload area because the ’040 patent claims were broadened to
`remove such a limitation—as the Examiner stated: “[’040 claim 1] is essentially
`the same as patented claim 1 [of the parent patent 8,009,667)] though using slightly
`different terminology and broadened by the omission of limitations … including
`the packing sub-headers in the payload area.” ’798 Case, Dkt. 108-3 at Ex. F
`(Mot. for Clarification Evid.), p. 140. The inventors knew how to claim a specific
`location for the packing sub-header (e.g., as they did in the ’667 patent), and how
`to broaden the claims to remove such a limitation, as they did in the ’040 patent.
`
`At bottom, Apple attempts to import into the claims the embodiment of
`Figure 14, which is improper even if the patent describes only a single embodiment
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`(which it does not). Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005)
`(“[W]e have expressly rejected the contention that if a patent describes only a
`single embodiment, the claims of the patent must be construed as being limited to
`that embodiment.”). Moreover, as Apple admits, the specification teaches that the
`packing sub-headers need not be arranged as per Figure 14 and could all be
`located, for example, contiguously at the beginning of the payload area (e.g.,
`adjacent to the header area), showing that the location of the packing sub-headers
`is merely a matter of naming convention (i.e., semantics), and not a matter of
`substance in the operation of the invention. ’798 Case, Dkt. 86 (Apple Markman
`Reply) at 17. In fact, the specification states that the “packing sub-headers” may
`be “separated from the SDUs”—indicating that the location of the “packing sub-
`headers” is immaterial and not confined to Figure 14. ’040, Col. 2:11-15.5
` QoS (’723 and ’145 Patents)
`2.
`Wi-LAN’s
`Apple’s Construction
`Claim
`Term
`Construction
`QoS
`quality of service quality of service, an algorithm
`performed in a media access
`controller (MAC)
`The parties stipulated to Wi-LAN’s construction in the ’798 Case. ’798,
`Dkt. 95 at Ex. A (JCCS Chart), p. 5. Apple should be held to its stipulation.
`a. Issue Preclusion Bars Apple’s Relitigation of This Issue
`The factors for issue preclusion discussed above apply equally here. To the
`extent Apple argues that a new issue exists because QoS was stipulated-to in the
`’798 Case in a different patent, the ’640 patent, this argument lacks merit. Issue
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`’798
`Construction
`quality of service
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`5 Apple has raised other arguments that have already been addressed and rejected
`by the Court, including that the FC and FSN fields allegedly do not indicate SDU
`length, the embodiments without a packing sub-header would allegedly render the
`invention useless, and Figure 14 allegedly shows the only possible embodiment of
`a packing sub-header. ’798 Case, Dkt. 131 (Wi-LAN Opp.) at 10-12; Ex. C at 3.
`
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`preclusion may still apply across related patents, absent identification of new
`intrinsic evidence that “materially impact[s] the interpretation of a claim.”
`e.Digital, 772 F.3d at 726-727. The ’723 patent-in-suit, where QoS appears, is a
`continuation of the ’640 patent with the same specification. Moreover, the only
`intrinsic evidence Apple relies on in the JCCS were passages from the ’723 patent-
`in-suit that appear in the ’640 patent. Dkt. 143, Ex. A (JCCS Chart) at 22-23.
`Because Apple cites no new intrinsic evidence beyond what was at issue in the
`’798 Case, there is no basis for a different claim construction. The issue here is
`identical as it is the same term construed based on the same patent specification.
`b. There Is No Basis on the Merits for Relitigation of This Issue
`QoS is a recognized acronym for “Quality of Service.” It is also defined as
`“quality of service” in the claims and specification:
`placing, at the subscriber unit, data received on one or more
`connections into queues, based on the quality of service (QoS)
`of the data; [’723, claim 1]
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`placing data received from various sources into a queue based
`on the quality of service (QoS) of the data; [’145, claim 1]
`
`The quality of service or ‘QoS’ for the DAMA connection is
`established when the CPE connection is initially established
`with the base station. [’145, Col. 15:4-6)
`
`The Patentee’s definition (and Wi-LAN’s construction) should be adopted.
`Honeywell Int’l. v. Universal Avionics Sys., 493 F.3d 1358, 1361 (Fed. Cir. 2007)
`(“When a patentee defines a claim term, the patentee’s definition governs.”).
`Moreover, Apple’s construction is improper because QoS was not expressly
`defined per Apple’s construction nor was there a disclaimer. Unwired Planet v.
`Apple Inc., 829 F. 3d 1353, 1358 (Fed. Cir. 2016) (holding ordinary meaning
`applies absent 1) an express definition or 2) a clear and unmistakable disclaimer).
`Apple’s construction requiring QoS be “an algorithm performed in a media
`access controller (MAC)” adds limitations that are not required, and, in fact,
`
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`contradict the patents. As Apple has stated, QoS specifies the “different and
`varying needs” of users (e.g., voice and email).6 It is not “an algorithm performed
`in a media access controller (MAC).” QoS may be considered, amongst other
`factors, by an algorithm that assigns bandwidth, but QoS is not the algorithm nor is
`it performed. For example, the specification teaches that “in determining the
`amount of bandwidth to allocate at a particular QoS for a particular CPE, the base
`station takes into account the QoS, modulation, and the fairness criteria.” ’723,
`Col. 18:59-63.
`Other passages further confirm QoS may be considered by an algorithm,
`such as a fairness algorithm, but QoS itself is not “an algorithm performed.” See,
`e.g., ’723, Col. 18:51-54 (“The base station higher layer control layers are free to
`implement any convenient fairness or traffic shaping algorithms regarding the
`sharing of access between connections at the same QoS.”); ’723, Col. 18:64-65
`(“Bandwidth is preferably allocated in QoS order.”);
`Apple’s construction is further improper because QoS is not limited to being
`“performed in a media access controller (MAC).” As Apple admits, QoS is a
`broad term that specifies the “different and varying needs” of users; it is not a
`concept that exists only in the MAC, or any particular software/hardware layer.
`See supra fn. 6; see also ’723, Col. 2:16-23; 10:53-57; 19:46-48. Further, many
`asserted claims with QoS do not recite MAC limitations. See, e.g., ’145, claim 1.
`The claims themselves make clear when a MAC is required, and Apple’s attempt
`to import a MAC limitation in all claims that recite the term QoS is improper.
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`6 “The end users of the system interact with the CPE or subscriber unit with
`different and varying needs, referred to as Quality of Service (‘QoS’). For
`example, a user making a voice call will have a higher-priority QoS needs than a
`user sending an email because data transmission during a voice call must be at a
`consistent and uninterrupted rate to ensure an undisrupted call.” Ex. F at 16.
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` Queue(s) (’723, ’145, ’761, and ’020 Patents)
`3.
`’798 Case
`Claim
`Wi-LAN’s
`Apple’s Construction
`Construction
`Term
`Construction
`structure(s)
`buffer(s) of a plurality of buffers
`queue(s)
`structure(s)
`containing
`within a MAC, each associated
`containing
`data to be
`with a unique QoS, containing
`data to be
`transmitted
`data to be transmitted
`transmitted
`
`
`The parties stipulated to Wi-LAN’s proposed construction in the ’798 Case,
`and Apple is issue precluded from seeking a new construction. ’798, Dkt. 95 at Ex.
`A (JCCS Chart), p. 5. Moreover, Apple’s new construction improperly imports
`extraneous limitations that are not supported by the specification or claims.
`a. Issue Preclusion Bars Apple’s Relitigation of This Issue
`Apple is precluded from seeking a new construction for queue(s). The only
`intrinsic evidence Apple relies on in the JCCS is from the ’723 patent-in-suit that
`has the same specification as the ’640 patent from the ’798 Case. Dkt. 143 at Ex.
`A (JCCS Chart), p. 20. Apple cites no new intrinsic evidence beyond what was at
`issue in the ’798 Case, and there is no basis for a different claim construction. The
`issue here is identical as it is the same term construed based on the same patent
`specification. Thus, issue preclusion applies. e.Digital, 772 F.3d at 726-727.
`b. There Is No Basis on the Merits for Relitigation of This Issue
`Moreover, Apple’s new construction
`improperly
`imports extraneous
`limitations related to the “MAC” and “QoS” that are separate from the meaning of
`“queue” (which as the parties previously stipulated means “structure containing
`data to be transmitted”). The claims include limitations related to the “MAC” and
`“QoS” that are claimed as separate and apart from the “queues.” Thus, it would be
`improper to import these separate limitations into the term “queue,” especially
`when other asserted claims do not include limitations related to the “MAC” and
`“QoS.” Phillips, 415 F.3d at 1314 (“[T]he claim in this case refers to ‘steel
`baffles,’ which strongly implies that the term ‘baffles’ does not inherently mean
`objects made of steel.”). Nor can Apple identify a clear and unmistakable
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`disclaimer warranting importing limitations. Unwired Planet, 829 F. 3d at 1358.
`Specifically, claim 1 of the ’020 patent recites a “Media Access Control
`(MAC) module.” In contrast, claim 1 of the ’723 patent and claim 16 of the ’761
`patent do not recite MAC limitations. Likewise, claims 9 and 26 of the ’145 patent
`recite a “media access (MAC) module,” while claim 1 of the ’145 patent does not.
`Thus, the claims themselves make clear when a MAC is required and when it is
`not, and Apple’s attempt to import a MAC limitation in all claims that recite the
`term queue is improper. Phillips, 415 F.3d at 1325 (“[C]laim terms should not be
`read to contain a limitation where another claim restricts the invention in exactly
`the [same] manner.”). Moreover, claims 9 and 26 of the ’145 patent claim the
`“media access control (MAC)” separate and apart from the queues.
`Similarly, some claims recite QoS limitations associated with a queue(s),
`while others do not. For example, claims 1 and 9 of the ’145 patent recite placing
`data into a queue based on QoS, while claim 26 of the ’145 patent does not recite a
`QoS limitation. Again, the claims themselves make clear when and how QoS is
`required, and Apple’s attempt to import a QoS limitation in all claims that recite
`the term queue is improper. Further, Apple improperly imports a limitation that
`the term queue requires a “unique QoS” when the specification never defines
`queue in such a manner nor was there any disclaimer. Unwired Planet, 829 F. 3d
`at 1358 (holding ordinary meaning applies absent express definition or disclaimer).
`Finally, Apple’s construction improperly imports a “plurality of buffers” in
`claims that require only a single queue. For example, claim 1 of the ’145 patent
`recites only a single queue (“placing data received from various sources into a
`queue”). Again, the claims make clear when a “plurality of queues” are required
`(e.g., claim 9 of the ’145 patent) and when only a single queue is required (e.g.,
`claim 1 of the ’145 patent), and Apple improperly attempts to import a requirement
`for multiple queues in all claims that recite the term queue.
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`Apple’s Construction ’798 Case Construction
`
` Wireless Subscriber Unit (And Related Terms) (’723, ’145, ’761,
`4.
`’020, and ’757 Patents)
`Claim
`Wi-LAN’s
`Term
`Construction
`module that receives UL
`fixed or portable
`module that
`wireless
`bandwidth from a base
`customer premises
`receives UL
`subscriber
`station, and allocates the
`equipment that
`bandwidth from
`unit /
`bandwidth across its user
`wirelessly receives UL
`a base station,
`subscriber
`connections*
`bandwidth from a base
`and allocates
`unit /
`
`station, and allocates
`the bandwidth
`subscriber
`*construction for
`the bandwidth across
`across its user
`radio unit /
`“wireless subscriber
`its connected user
`connections
`subscriber
`radio unit”
`devices
`station
`
`
`Apple relitigates the Court’s prior denial that the patents are limited to a
`“customer premises equipment” (or CPE) and require “connected user devices.”
`While Apple re-brands the issue here as new because the Court previously
`construed “wireless subscriber radio unit” (not “wireless subscriber unit,” a short-
`hand reference to the same thing), Apple in actuality seeks to relitigate the same
`CPE issue with the same intrinsic evidence and arguments. Moreover, Apple’s
`construction improperly adds limitations unsupported by the intrinsic evidence.
`a. Issue Preclusion Bars Apple’s Relitigation of This Issue
`Apple here reargues the identical issue from the ’798 Case that the claims
`are limited to a preferred embodiment, the CPE. The Court already rejected the
`argument that claims to a wireless subscriber radio unit are limited to a CPE. Ex.
`A (Markman Order) at 8, fn. 8 (“Apple uses the term CPE instead of ‘wireless
`subscriber radio unit.’ As discussed above, the Court declines to impose that
`limitation on the claims.”); id. at 7-8 (“The primary dispute, then, is whether the
`‘wireless subscriber radio units/wireless communication radio units’ are equivalent
`to customer premises equipment (‘CPE’). Although the specification refers
`repeatedly to CPEs as part of the invention, it is not clear that CPEs are
`interchangeable with ‘wireless subscriber radio units. . . .’”)
`Apple’s construction also limits the claims to “connected user devices,” a
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`further attempt to import the CPE and to require a three stand-alone device system.
`The Court also squarely re