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`Mark C. Scarsi (SBN 183926)
`mscarsi@milbank.com
`Ashlee N. Lin (SBN 275267)
`anlin@milbank.com
`MILBANK, TWEED, HADLEY & McCLOY LLP
`2029 Century Park East, 33rd Floor
`Los Angeles, California 90067
`Telephone: (424) 386-4000
`Facsimile: (213) 629-5063
`
`Christopher J. Gaspar (admitted pro hac vice)
`cgaspar@milbank.com
`MILBANK, TWEED, HADLEY & McCLOY LLP
`28 Liberty Street
`New York, New York 10005
`Telephone: (212) 530-5000
`Facsimile: (212) 822-5019
`
`Attorneys for Plaintiff Apple Inc.
`
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
` No. 3:14-cv-2235-DMS-BLM
`(lead case);
`No. 3:14A-cv-1507-DMS-BLM
`(consolidated)
`
`
`APPLE INC.,
`
`
`Plaintiff,
`v.
`WI-LAN, INC.,
`
`
`Defendant.
`
`________________________________
`
`
`
`AND RELATED COUNTERCLAIMS
`
`PLAINTIFF’S PATENT L.R. 4.4(a)
`OPENING CLAIM
`CONSTRUCTION BRIEF
`
`Department: 13A
`Judge: Hon. Dana M. Sabraw
`Magistrate Judge: Hon. Barbara L.
`Major
`
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`APPLE’S OPENING CLAIM CONSTRUCTION BRIEF
`3:14-CV-02235-DMS-BLM
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`Case 3:14-cv-02235-DMS-BLM Document 164 Filed 09/07/17 PageID.5411 Page 2 of 31
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`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 1
`I.
`II. APPLICABLE LAW ....................................................................................... 2
`III. TECHNOLOGY OVERVIEW ....................................................................... 3
`A.
`FIXED VERSUS MOBILE COMMUNICATIONS SYSTEMS ......... 3
`B.
`BANDWIDTH PATENTS ................................................................... 4
`C. MODULATION PATENT – U.S. PATENT NO. 8,537,757 ............... 7
`D. DATA PACKING PATENT – U.S. PATENT NO. 8,311,040 ............ 8
`IV. DISPUTED TERMS FOR CONSTRUCTION ............................................ 10
`1.
`“subscriber station” / “subscriber unit” / “wireless
`subscriber unit” ......................................................................... 10
`“connections” / “uplink connections” / “a plurality of
`connections served by the subscriber unit” / “connections
`established at a [or the] subscriber unit [or subscriber
`station]” ..................................................................................... 13
`“QoS” ........................................................................................ 15
`3.
`“queue(s)” ................................................................................. 16
`4.
`“packing sub-header” ............................................................... 18
`5.
`“frame map” / “sub-frame map” ............................................... 19
`6.
`“poll-me bit” / “poll-me message” ........................................... 21
`7.
`The limiting preamble of claim 26 of the ’145 Patent ............. 22
`8.
`“fairness algorithm” .................................................................. 24
`9.
`CONCLUSION ............................................................................................. 25
`
`2.
`
`V.
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`Case 3:14-cv-02235-DMS-BLM Document 164 Filed 09/07/17 PageID.5412 Page 3 of 31
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`TABLE OF AUTHORITIES
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`Page(s)
`
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`CASES
`Am. Calcar, Inc. v. Am. Honda Motor Co. Inc.,
`2007 WL 5734827 (S.D. Cal. Sept. 24, 2007) ................................................... 23
`Bell Commc’ns Research, Inc. v. Vitalink Commc’ns Corp.,
`55 F.3d 615 (Fed. Cir. 1995) .............................................................................. 24
`Bicon, Inc. v. Straumann Co.,
`441 F.3d 945 (Fed. Cir. 2006) ............................................................................ 22
`Edwards Lifesciences LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009) ............................................................................ 2
`GE Lighting Solutions., LLC v. AgiLight, Inc.,
`750 F.3d 1304 (Fed. Cir. 2014) .................................................................... 17, 22
`General Electric Co. v. Nintendo Co.,
`179 F.3d 1350 (Fed. Cir. 1999) .......................................................................... 22
`Intervet Inc. v. Merial Ltd.,
`617 F.3d 1282 (Fed. Cir. 2010) ............................................................................ 3
`Irdeto Access, Inc. v. Echostar Satellite Corp.,
`383 F.3d 1295 (Fed. Cir. 2004) ............................................................................ 2
`Lemelson v. Gen. Mills, Inc.,
`968 F.2d 1202 (Fed. Cir. 1992) ............................................................................ 2
`Palmchip Corp. v. Ralink Tech. Corp.,
`2014 WL 12585805 (C.D. Cal. Dec. 29, 2014) ................................................. 24
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ...................................................... 2, 24
`Poly-Am., L.P. v. GSE Lining Tech, Inc.,
`383 F.3d 1303 (Fed. Cir. 2004) .......................................................................... 23
`Sunstone Dental, LLC v. KaVo Dental, GmbH,
`No. cv-09-02147, 2010 WL 11507994 (C.D. Cal. May 13, 2010) .................... 24
`ii
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`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) .............................................................................. 2
`Wi-LAN USA, Inc. v. Apple Inc.,
`830 F.3d 1374 (Fed. Cir. 2016) .............................................................. 13, 16, 20
`Wi-LAN v. Apple,
`13-CV-798-DMS-BLM ............................................................................... passim
`
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`I.
`
`INTRODUCTION
`Pursuant to Patent Local Rule 4.4, Apple Inc. hereby submits its opening
`brief and evidence in support of its proposed claim constructions for terms in U.S.
`Patent Nos. 8,457,145 (the “’145 Patent”), 8,462,723 (the “’723 Patent”),
`8,462,761 (the “’761 Patent”), 8,537,757 (the “’757 Patent”), 8,615,020 (the “’020
`Patent”), and 8,311,040 (the “’040 Patent” and collectively, the “Patents-In-Suit”)
`that the parties contend should be construed by the Court.
`The claims of the Patents-in-Suit generally relate to alleged improvements in
`the way bandwidth resources are requested and used in a so-called “last mile” or
`fixed wireless communications system. Several of the Patents-in-Suit claim
`priority to patents filed between 1999 and 2001 that also have been declared
`essential to the IEEE 802.16 communications standard entitled “Air Interface for
`Fixed Broadband Wireless Access Systems” (“Wi-MAX Standard”).1 Wi-LAN
`Inc., however, alleges that Apple’s most-recent iPhone products, developed over
`15 years after the suggested priority dates of the Patents-in-Suit, infringe because
`they support the mobile Voice over LTE mobile communications profile
`(“VoLTE”). As Apple will show, the purported inventions claimed in the Patents-
`in-Suit relate to the fixed Wi-MAX Standard developed in the late 1990s, not the
`more recent mobile VoLTE. Recognizing the significant differences between the
`patent claims and the accused technology, Wi-LAN attempts now to materially
`recast the claimed subject matter. Wi-LAN’s proposed constructions cannot be
`reconciled with the intrinsic or extrinsic evidence, and adopting them would
`controvert controlling Federal Circuit precedent. By contrast, Apple’s claim
`
`
`1 See, e.g., Declaration of Ashlee Lin in Support of Defendant Apple Inc.’s
`Opening Brief in Support of Its Proposed Claim Constructions (“Lin Decl.”), Ex.
`D, IEEE 802.16-2001: Air Interface for Fixed Broadband Wireless Access
`Systems; Lin Decl., Exs. E-G, Standard Essential Patent Letters of Assurance
`relating to the Patents-in-Suit.
`1
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`constructions are grounded in the claims, specifications, prosecution histories, and
`even the extrinsic evidence, and are in harmony with the ordinary and customary
`meaning of the claims’ terms at the relevant time.
`II. APPLICABLE LAW
`The Court should give each claim term the “meaning that the term would
`have to a person of ordinary skill in the art in question at the time of the
`invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en
`banc). The Court looks first to the “intrinsic evidence,” namely the claim language
`itself, the specification, and the prosecution history. See id. at 1315.
`The most reliable form of evidence is the patent and its prosecution history,
`because this “intrinsic evidence” provides “evidence of how the PTO and the
`inventor understood the patent.” Id. at 1317. The patent’s specification is
`particularly important and “is always highly relevant to the claim construction
`analysis. Usually, it is dispositive; it is the single best guide to the meaning of a
`disputed term.” Id. at 1315 (citations omitted); see also Vitronics Corp. v.
`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The specification may
`define terms explicitly or by implication. Irdeto Access, Inc. v. Echostar Satellite
`Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) (“Even when guidance is not provided
`in explicit definitional format, the specification may define claim terms by
`implication such that the meaning may be found in or ascertained by a reading of
`the patent documents.”) (internal quotation omitted); Phillips, 415 F.3d at 1321.
`The prosecution history plays an important role in claim construction, as it
`“gives insight into what the applicant originally claimed as the invention, and often
`what the applicant gave up in order to meet the Examiner’s objections.” Lemelson
`v. Gen. Mills, Inc., 968 F.2d 1202, 1206 (Fed. Cir. 1992).
`Sometimes a patentee will act as his own lexicographer, coining terms with
`unique meanings in the context of the patent. Edwards Lifesciences LLC v. Cook
`
`2
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`Inc., 582 F.3d 1322, 1329 (Fed. Cir. 2009). Such terms “are best understood by
`reference to the specification.” Intervet Inc. v. Merial Ltd., 617 F.3d 1282, 1287
`(Fed. Cir. 2010).
`III. TECHNOLOGY OVERVIEW
`FIXED VERSUS MOBILE COMMUNICATIONS SYSTEMS
`A.
`The technology found in the Patents-in-Suit arose in the late 1990s and
`coincided with particular developments in the market.2 At that time, the fixed-
`wireless industry, on one hand, and the mobile-cellular-telephony industry, on the
`other, were developing on diverging paths. Both industries focused generally on
`wireless communication, but the differences in the technological and business
`needs of each industry were vast, leading to distinct technologies.
`The mobile-cellular-telephony industry existed before the Patents-in-Suit.
`For example, GSM (Global System for Mobile communication) and PCS (personal
`communications service) mobile wireless systems were on the market then. The
`3G mobile wireless standards (e.g., W-CDMA, a precursor to the accused VoLTE
`technology) also existed then. Mobile communication systems, whereby a user’s
`device can communicate with a wireless system while the device itself travels at
`vehicular speeds (e.g., greater than 60 miles per hour) across a large area through
`the usage of cell/base station handoff, were well known before the Patents-in-Suit.
`By contrast, the Patents-in-Suit attempt to solve problems found in a fixed wireless
`system; the alleged inventions of those patents do not teach or disclose mobile (i.e.,
`cellular) systems. The patents also do not explain if the claimed inventions could
`be modified to achieve wireless mobility. For example, the patents do not discuss
`whether or how there might be a handoff of a connection from one Subscriber
`Station3 between base stations in geographically distinct coverage areas (i.e., cells).
`
`2 The suggested priority dates of the Patents-in-Suit range from 1999 to 2001.
`3 See, Lin Decl., Ex. D, (Wi-MAX standard defined “Subscriber Station”: “3.45
`subscriber station (SS): A generalized equipment set providing connectivity
`3
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`Such functionality is essential in mobile communications but unnecessary in fixed
`or portable wireless applications.
`The Patents-in-Suit concern “fixed and portable” wireless communications
`systems. See, e.g., ’723 Patent, 1:27–38. Such a system operates from a single
`location, such as a home or office, and a user’s device communicates with a single
`base station without the need for communication with and handoff between
`multiple base stations. Fixed devices, e.g., a home computer, are not designed to
`be moved whereas portable devices, e.g., a cordless telephone, integrate the
`concept of movement within a defined area, but do not allow for mobile
`communications as described above. The disclosed “subscriber radio stations or
`subscriber units” of the patents are said to be “fixed and portable,” not mobile. Id.
`The fixed or portable wireless systems of the Patents-in-Suit have three main
`elements: (i) a centralized base station; (ii) a fixed or portable Customer Premises
`Equipment (“CPE”), a.k.a., Subscriber Station; and (iii) connected user devices.
`The Subscriber Stations communicate with the central base station by using a
`downlink for transmissions received from the base station, and an uplink for
`transmissions to the base station. For example, “[a] link conveys that part of the
`downlink transmissions … from the base station 12 that contains data for the
`particular node 16, and also conveys uplink transmissions from the particular node
`16 to the base station 12.” ’040 Patent, 4:64–5:1.
`BANDWIDTH PATENTS
`B.
`The ’145, ’723, ’761, and ’020 Patents (the “Bandwidth Patents”), relate to
`technology developed by Ensemble Communications, Inc., a former wireless-
`equipment supplier. Ensemble developed equipment to enable telecommunications
`carriers to provide data services to businesses or residences using fixed-location
`
`between subscriber equipment and a base station”) (emphasis added); see also ’020
`Patent, 1:32-36 (“fixed subscriber stations or Customer Premises Equipment (CPE)
`stations”).
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`equipment. See, e.g., Lin Decl., Ex. A. In 1999, Ensemble filed an application that
`later issued as U.S. Patent No. 6,925,068. See, e.g., ’145 Patent, “Related U.S.
`Application Data.”
`In 2004, Wi-LAN acquired that patent and related pending applications
`when it purchased a portfolio consisting of seventeen U.S. patents, patent
`applications, and foreign counterparts. See Lin Decl., Ex. B. Although Wi-LAN
`contributed nothing at the time of the purported inventions, Wi-LAN continued
`years later to prosecute applications in this family and to file additional
`applications with similar specifications, including the applications filed between
`December 2009 and June 2012 that eventually issued as the Bandwidth Patents.4
`The Bandwidth Patents are directed to a purportedly improved fixed wireless
`communications system that includes the well-known concept of CPE, a.k.a.,
`Subscriber Stations.5 Unlike a traditional local area network that allows direct
`communications between the end user and a base station, the Bandwidth Patents
`utilize a Subscriber Station that receives allocation of bandwidth from a base
`station to distribute to distinct end users in a fixed or portable – but not mobile –
`wireless communications system. For example, Figure 1 of the Bandwidth Patents
`shows a fixed or portable system (not a mobile one):
`
`
`
`4 The Bandwidth Patents either claim priority to or share a specification similar to
`U.S. Patent No. 8,315,640 (the “’640 Patent”). Wi-LAN asserted that patent
`against Apple in Wi-LAN v. Apple, Case No. 13-cv-798-DMS-BLM (S.D. Cal.), in
`which this Court granted Apple summary judgment of non-infringement. Dkt. 278
`(Sept. 30, 2014).
`5 The asserted claims of the Bandwidth Patents reference either a Subscriber
`Station or a Subscriber Unit; however, those patents’ specifications describe the
`claimed invention using the term “CPE.” These terms are interchangeable.
`5
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`’723 Patent, Fig.1. Each cell (102) includes a single base station (106) and a
`plurality of CPEs (110) positioned at fixed customer sites (112) throughout the
`coverage area (102). The system’s users, including both residential and
`commercial customers, interact with the CPEs with different and varying usage
`and bandwidth needs. See, e.g., id., 2:10–15.
`The Bandwidth Patents describe a CPE-driven allocation system where the
`CPE requests and determines how to distribute allocated bandwidth amongst its
`connected user devices. See, e.g., id., 2:16–21. According to the patents, there are
`generally two ways the CPE requests bandwidth: (1) “polling,” whereby a base
`station polls one or more CPEs (either periodically or in response to a request by a
`CPE), and allocates bandwidth specifically for the purpose of allowing the CPE to
`transmit a bandwidth request, or (2) “piggybacking,” whereby a CPE requests
`bandwidth using bandwidth already allocated to a CPE. See, e.g., id., 4:4–35. A
`base station media access controller (“MAC”) then allocates the available
`bandwidth for uplink based on the bandwidth requests. See, e.g., id., 4:51–5:5.
`The CPE serves end-user devices by maintaining multiple queues for data from the
`end-user devices that communicate with the CPE over distinct connections. Id.
`Each queue contains data with a similar quality-of-service-transmission
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`requirement. Id. The CPE then allocates the granted bandwidth across its user-
`device connections, depending on priorities and rules, in a way that allows the CPE
`to use the granted bandwidth efficiently. Id.
`C. MODULATION PATENT – U.S. PATENT NO. 8,537,757
`Like the Bandwidth Patents, the ’757 Patent concerns a wireless-
`communication system with a base station managing the flow of uplink and
`downlink communications between multiple CPEs. Whereas the Bandwidth
`Patents focus on bandwidth allocation between a base station, CPE, and user
`devices, the ’757 Patent focuses on configuring the increase or decrease of the
`robustness of transmission-modulation techniques used by a base station and its
`connected CPEs. This increase or decrease in robustness is achieved by adapting
`the device’s “PHY mode.” A PHY mode “is used to indicate characteristics of a
`communication channel or link, including for example, modulation scheme and/or
`an [forward error correction] FEC.” ’757 Patent, 4:65–5:3.
`
`’757 Patent, Fig. 1. The base station (102) and subscriber stations (104) control the
`selection of PHY mode based on the characteristics of the communication medium.
`By adapting the PHY mode of the respective base station or CPEs, the
`communication system is able to more efficiently implement its time division
`duplexing (“TDD”) system. The patented system uses different PHY modes
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`representing various degrees of so-called robustness in communication. The most
`robust PHY mode represents a signal modulation scheme that is “least prone to
`transmission errors caused by signal interference” whereas the least robust PHY
`mode is most prone to transmission errors. See, e.g., ’757 Patent, 6:21–25.
`When a base station and CPE communicate over a medium (like air) that has
`interference from other signals, a more robust PHY mode would likely need to be
`utilized. Increasing distance or the amount of objects between the base station and
`CPE also generally requires use of a more robust PHY mode.
`DATA PACKING PATENT – U.S. PATENT NO. 8,311,040
`D.
`Like the Bandwidth Patents, the ’040 Patent relates to technology developed
`by Ensemble. In 2002, the inventors filed an application that later issued as U.S.
`Patent No. 8,009,667. See ’040 Patent, “Related U.S. Application Data.” In 2004,
`Wi-LAN acquired this and related pending applications in the same transaction
`mentioned above. In 2010, Wi-LAN filed an application claiming priority to the
`’667 Patent, which eventually issued as the ’040 Patent.
`The ’040 Patent is directed to the processing and reformatting of packets of
`information for transmission in a data-communications system. ’040 Patent, 1:16–
`18, claims 1–22. Figure 1 of the ’040 Patent shows one such system:
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`Case 3:14-cv-02235-DMS-BLM Document 164 Filed 09/07/17 PageID.5422 Page 13 of 31
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`Id., Fig.1. The exemplary communications network and system features a base
`station (12) and several nodes (16) for transmitting data packets from a data source
`to end users and vice versa. Id., 4:8–22. The base station is connected to various
`data sources, such as the Internet, any number of databases, or other data source.
`Id., 4:44–47. Each node serves multiple connections for user devices. Id., 4:40–
`44. Information is received by the base station, prepared, transmitted across a data
`link to a node, and directed to an appropriate connection for transmission to the
`correct user device. Id., 4:47–53. Figure 3 illustrates a node within such a system:
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`’040 Patent, Fig. 3. The ’040 Patent describes a system and method for mapping
`and formatting variable-length service data units (“SDUs”) into variable-length
`protocol data units (“PDUs”) for transmission. During uplink transmissions, user
`connections (36) provide information packets in the form of SDUs to a node in
`order to be converted into PDUs. Id., 6:44–64. The claimed nodes pack and
`fragment SDUs into PDUs by determining the amount of bandwidth needed for the
`connection, packing SDUs into the payload area of a PDU, fragmenting SDUs
`where the SDU length is larger than the remaining payload area in the PDU, and
`mapping the remaining fragments onto additional PDUs before transmitting PDUs
`to the base station. See, e.g., id., claims 1–2, 5, 14–16. The SDUs, or any frame or
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`Case 3:14-cv-02235-DMS-BLM Document 164 Filed 09/07/17 PageID.5423 Page 14 of 31
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`Wi-LAN’s Construction
`module that receives UL bandwidth
`from a base station, and allocates the
`bandwidth across its user connections
`
`As clarified by the Court, a
`subscriber unit/subscriber station can
`be a component part of a user device7
`
`sub-frame maps relating to the same, are not packed into the headers of the PDUs.
`See, e.g., id., 18:15–37; Fig. 14.
`IV. DISPUTED TERMS FOR CONSTRUCTION
`“subscriber station” / “subscriber unit” / “wireless
`1.
`subscriber unit”6
`Claim Term Apple’s Construction
`subscriber
`fixed or portable
`station /
`customer premises
`subscriber unit
`equipment that
`/ wireless
`wirelessly receives UL
`subscriber unit
`bandwidth from a base
`station, and allocates the
`bandwidth across
`connected user devices
`The parties’ constructions of subscriber station / unit differ in two material
`respects. Apple’s position, supported by the Patents-in-Suit, is that a subscriber
`station can be fixed or portable, but not mobile, and is a separate device from either
`a base station or a user. Wi-LAN, on the other hand, attempts to cleanse a
`subscriber station from any structure by labeling it a “module” and arguing that a
`subscriber station can be a component part of a user device.
`The Bandwidth Patents use the term subscriber station / unit as an analog to
`a CPE.8 A subscriber station is a fixed or portable CPE (not part of a mobile
`device) that wirelessly receives UL bandwidth from a base station, and allocates
`the bandwidth across connected user devices. See § III.B, supra, for a discussion
`of the relationship between CPE and subscriber stations / units.
`
`6 This term concerns the ’145, ’723, ’020, ’761, and ’757 Patents.
`7 See Order Granting Plaintiffs’ Motion for Clarification and Reconsideration, Dkt.
`123 in Wi-LAN v. Apple, Case No. 13-cv-0798-DMS-BLM, at p. 3.
`8 See § III.B, supra; see also, e.g., ’723 Patent: abstract, Figs. 1, 4–8, and 13; 1:28–
`50; 1:61–2:15; ’757 Patent: Figs. 1, 3; 1:27–52; Lin Decl., Ex. I, Wi-LAN
`Amendment after Notice of Allowance, No. 13/089,024 (May 1, 2013); Lin Decl.,
`Ex. J, Wi-LAN Response to Office Action, U.S. 13/089,024 (February 19, 2013);
`Lin Decl., Ex. K, USPTO Office Action, U.S. 13/089,024 (January 31, 2013).
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`Case 3:14-cv-02235-DMS-BLM Document 164 Filed 09/07/17 PageID.5424 Page 15 of 31
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`The Bandwidth Patents disclose a wireless communication system that
`“facilitates two-way communication between a plurality of base stations and a
`plurality of fixed subscriber stations or Customer Premises Equipment (CPE).”
`See, e.g., ’723 Patent, 1:61–67 (emphasis added). The Bandwidth Patents use
`“CPE” throughout the specification to describe the subscriber stations in the
`wireless communication system. For example, the Bandwidth Patents describes
`the CPE as being “responsible for distributing the allocated uplink bandwidth in a
`manner that accommodates the services provided by the CPE.” Id., 4:36–38. The
`Bandwidth Patents further state that “[t]he CPE advantageously determines which
`services to give bandwidth to and which services must wait for subsequent
`bandwidth requests. To this end, the CPE maintains a priority list of services.”
`Id., 10:50–57. “The CPE itself, rather than the base station, distributes the
`allocated bandwidth to its services in any manner the CPE determines to be
`appropriate.” Id., 22:48–52.
`Likewise, the ’757 Patent, which uses the term “subscriber station” only in
`the claims and at no other place in the specification, discloses an analogous system
`“configured to control the admission of new connections and the suspension of
`existing connections between a base station and customer premise equipments
`(CPEs), wherein the base station and the CPEs are each configured to increase or
`decrease the robustness of their transmission modulation technique by adapting
`their PHY mode.” ’757 Patent, 1:65–2:4 (emphasis added).9
`As the asserted claims describe, the subscriber station registers with the base
`station, requests bandwidth allocation, and then allocates it amongst the user
`device connections. This is exactly how CPE is described in the specification as
`well. See § III.B, supra. Apple’s construction of “fixed or portable customer
`
`9 The ’757 Patent references the unclaimed term “subscriber unit” only to describe
`a prior art communication system and not the claimed invention. See, e.g., id.,
`1:26–52 (Description of Related Art).
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`Case 3:14-cv-02235-DMS-BLM Document 164 Filed 09/07/17 PageID.5425 Page 16 of 31
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`premises equipment that wirelessly receives UL bandwidth from a base station,
`and allocates the bandwidth across connected user devices” thus is compelled by
`both the specification and the claims.
`Wi-LAN takes a broader view of the terms than what is disclosed in the
`relevant Patents-in-Suit in an attempt to cleanse a subscriber station of the limiting
`structure found in the patents. Under Wi-LAN’s construction, any “module” that
`allocates bandwidth between a base station and connection satisfies the
`requirements for a “subscriber station.” But the Bandwidth Patents are quite clear
`in situating the separate subscriber station between the again separate base station
`and its further separate user device to allow the connections found in the patent.
`Wi-LAN is asking the Court to adopt its construction of “wireless subscriber
`radio unit” from Wi-LAN v. Apple, 13-CV-798-DMS-BLM. There is no basis for
`doing so. “Wireless subscriber unit,” “subscriber unit,” and “subscriber station”
`were not construed in Wi-LAN v. Apple. Rather, the term “wireless subscriber
`radio unit / wireless communication radio unit” was construed. (Emphasis added.)
`There is a material difference between the two sets of claim terms. In fact, in
`declining to construe a “wireless subscriber radio unit” as a CPE, the Court
`previously drew a distinction between the term “subscriber station” and “wireless
`subscriber radio unit,” stating: “it is not clear that CPEs are interchangeable with
`‘wireless subscriber radio units/wireless communication radio units.’ For instance,
`the specification describes ‘fixed subscriber stations or Customer Premises
`Equipment (CPE).’ … Furthermore, the specification refers to ‘subscriber
`stations,’ not wireless radio units.” See Lin Decl., Ex. H, Wi-LAN v. Apple, Dkt.
`98 at 7–8 (Order Construing Patent Claims).
`The prosecution history of the ’723 Patent further supports Apple’s position
`in this regard. In response to the USPTO’s rejection of proposed claims during
`examination, Wi-LAN amended the claims of the ’723 Patent’s application to
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`Case 3:14-cv-02235-DMS-BLM Document 164 Filed 09/07/17 PageID.5426 Page 17 of 31
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