X2Y Attenuators, LLC v. International Trade Com'n, 757 F.3d 1358 (2014)
`36 ITRD 545, 111 U.S.P.Q.2d 1607
`
`757 F.3d 1358
`United States Court of Appeals,
`Federal Circuit.
`
`X2Y ATTENUATORS, LLC, Appellant,
`v.
`INTERNATIONAL TRADE
`COMMISSION, Appellee,
`and
`Intel Corporation, Intel Americas, Inc.,
`Componentes Intel De Costa Rica S.A.,
`Intel Technology SDN. BHD, Intel
`Products (Chengdu) Ltd., Apple Inc., and
`Hewlett–Packard Company, Intervenors.
`
`No. 2013–1340.
`|
`July 7, 2014.
`|
`Rehearing and Rehearing En
`Banc Denied Sept. 24, 2014.
`
`Synopsis
`Background: Patentee
`the
`in
`filed a complaint
`International Trade Commission
`(ITC) accusing
`a competitor of unlawful
`importation of certain
`microprocessor products. The ITC, 2012 WL 6883205,
`determined that intervenor's products were not covered by
`patentee's asserted patents. Patentee appealed.
`
`[Holding:] The Court of Appeals, Moore, Circuit Judge,
`held that patents' statements constituted clear and
`unmistakable disavowal of claim scope.
`
`Affirmed.
`
`Reyna, Circuit Judge, filed concurring opinion.
`
`Attorneys and Law Firms
`
`*1358 John D. Haynes, Alston & Bird LLP, of Atlanta,
`Georgia, argued for appellant. With him on the brief was
`Patrick J. Flinn.
`
`Sidney A. Rosenzweig, Attorney, Office of General
`Counsel, United States International Trade Commission,
`of Washington, DC, argued for appellee. With him on
`the brief were Dominic L. Bianchi, General Counsel, and
`Wayne W. Herrington, Assistant General Counsel.
`
`William F. Lee, Wilmer Cutler Pickering Hale and Dorr
`LLP, of Boston, Massachusetts, argued for intervenors.
`With him on the brief were Michael J. Summersgill,
`Joseph J. Mueller, Mark C. Fleming and Lauren B.
`Fletcher; James L. Quarles, III, and Nina S. Tallon, of
`Washington, DC; and Mark D. Selwyn, of *1359 Palo
`Alto, California. Of counsel on the brief for intervenor
`Apple Inc. were Marcia H. Sundeen, Kenyon & Kenyon
`LLP, of Washington, DC, and Megan Whyman Olesek,
`of Palo Alto, California.
`
`Before MOORE, REYNA, and WALLACH, Circuit
`Judges.
`
`Opinion
`
`Concurring opinion filed by Circuit Judge REYNA.
`
`MOORE, Circuit Judge.
`
`X2Y Attenuators, LLC (X2Y) appeals from the final
`determination of the International Trade Commission
`(ITC) that Intel Corporation and other intervenors (Intel)
`did not violate 19 U.S.C. § 1337 because Intel's products
`were not covered by X2Y's asserted patents. Because
`the ITC correctly construed the relevant claim terms, we
`affirm.
`
`BACKGROUND
`
`The asserted patents, U.S. Patent Nos. 7,609,500 (′500
`patent), 7,916,444 (′444 patent), and 8,023,241 (′241
`patent) are familially related. The technology disclosed
`in the asserted patents relates to structures for reducing
`electromagnetic interference in electrical circuits. The
`patented inventions use shielding electrodes to reduce
`the undesirable buildup of charge, known as “parasitic
`capacitance,” between electrodes used for conduction.
`′444 patent Abstract, col. 2 ll. 36–40, col. 4 ll. 60–65, col.
`9 ll. 5–40. In particular, the patents disclose alternating
`arrangements of shielded and shielding electrodes. ′500
`patent Figs. 1A, 1B; see Intervenor's Br. 19 (annotated by
`
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`X2Y Attenuators, LLC v. International Trade Com'n, 757 F.3d 1358 (2014)
`36 ITRD 545, 111 U.S.P.Q.2d 1607
`
`Intel and reproduced below); Appellant's Br. 5 (annotated
`by X2Y and reproduced below).
`
`*1360 Although it is not asserted, the parties treat claim
`26 of the ′ 444 patent as illustrative:
`
`An arrangement for energy conditioning, comprising: ...
`
`a first electrode including a first shielding electrode
`portion, a third electrode including a third shielding
`electrode portion, and a fifth electrode including a
`fifth shielding electrode portion, wherein said first
`electrode, said third electrode and said fifth electrode
`are conductively coupled to one another;
`
`a second electrode including a second shielded electrode
`portion; a fourth electrode including a fourth shielded
`electrode portion; wherein said second electrode and
`said fourth electrode are conductively isolated from
`each other; ...
`
`wherein said second shielded electrode portion and
`said fourth shielded electrode portion are in a first
`superposed alignment with each other; ... and wherein
`said second shielded electrode portion is physically
`shielded from said fourth shielded electrode portion by
`said third shielding electrode portion.
`
`′444 patent claim 26 (emphases added). At the ITC,
`the parties treated the ′444 patent claim term “third
`electrode,” ′241 patent claim term “center electrode” (see,
`e.g., ′241 patent claim 14), ′500 patent claim term “first
`ground plane,” (see, e.g., ′500 patent claim 1), and several
`other claim terms collectively as “electrode terms” or
`“center ground plane terms.” See J.A. 131–32 (“[E]ach of
`the asserted claims contains a term from a group that X2Y
`characterizes as the ‘electrode’ terms, and respondents
`characterize as ‘central ground plane’ terms.”).
`
`X2Y filed a complaint in the ITC accusing Intel of
`unlawful importation of certain microprocessor products.
`The parties disputed whether the electrode terms
`were limited to the so-called “sandwich” configuration
`—an arrangement of three electrodes
`in which a
`center conductor
`is flanked by paired differential,
`or oppositely charged, conductors. See ′500 patent
`col. 10 ll. 20–22 (describing “electrostatic suppression
`or minimization of parasitics originating from the
`sandwiched differential conductors”); ′444 patent col.
`11 ll. 64–65 (describing “sandwiching pairs of electrically
`opposing complementary pathways”); see also ′500
`patent col. 14 ll. 4–11 (“The various attachment schemes
`described *1361 herein will normally allow a ‘0’ voltage
`reference to develop with respect to each pair or plurality
`of paired differential conductors located on opposite
`sides of the shared central and common conductive
`pathway, and be equal yet opposite for each unit of a
`separated paired energy pathway or structure, between
`the centrally positioned interposing, common conductive
`shield pathway used.”). While Intel argued that the claims
`should be limited to the sandwich configuration, X2Y
`contended that the electrode terms require no construction
`and should be given their plain and ordinary meanings.
`See J.A. 139–44.
`
`The ITC resolved the dispute in favor of Intel. It
`adopted the Administrative Law Judge's construction
`of the electrode terms as requiring “a common
`conductive pathway electrode positioned between paired
`electromagnetically opposite conductors.” J.A. 36; see
`J.A. 131–34. This construction was based on specification
`disavowal—for example, the statement in the ′500
`patent that the sandwich configuration is “an essential
`element among all embodiments or connotations of the
`invention,” ′500 patent col. 19 ll. 22–23, and a statement
`incorporated by reference into the ′444 patent that
`this configuration is a “feature[ ] universal to all the
`
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`X2Y Attenuators, LLC v. International Trade Com'n, 757 F.3d 1358 (2014)
`36 ITRD 545, 111 U.S.P.Q.2d 1607
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`embodiments,” U.S. Patent No. 5,909,350 (′350 patent)
`col. 20 l. 16. 1 Because X2Y conceded noninfringement on
`the basis of this construction, the ITC found no violation.
`X2Y appeals. We have jurisdiction under 28 U.S.C. §
`1295(a)(6).
`
`1
`
`The asserted ′444 patent is a continuation-in-part of
`the ′ 350 patent, and it incorporates the ′350 patent
`by reference. The ′ 444 patent also incorporates by
`reference U.S. Patent No. 6,738,249, which contains
`a passage referring to “an essential element among all
`embodiments or connotations of the invention” that
`is identical to that in the ′500 patent. ′249 patent,
`col. 19 ll. 20–22; cf. ′500 patent col. 19 ll. 22–23.
`
`DISCUSSION
`
`[1]
` We review de novo the ITC's legal determinations,
`including those relating to claim interpretation. Gemstar–
`TV Guide Int'l, Inc. v. Int'l Trade Comm'n, 383 F.3d 1352,
`1360 (Fed.Cir.2004) (citation omitted).
`
`[2]
` X2Y argues that the ITC erred in its construction
`of the electrode terms. X2Y contends that the ITC
`improperly read several
`functional and structural
`limitations into the meaning of the term “electrode.” It
`contends that the plain meaning of “electrode” denotes
`a single conductor rather than three conductors, let
`alone a three-conductor sandwich structure having paired
`electromagnetically opposite conductors flanking the
`central conductor. X2Y argues that claim 26 of the ′444
`patent recites the physical role of each of the electrodes
`“separate and apart from any electrical characteristics ...
`created when the arrangement is connected in a circuit.”
`Appellant's Br. 27–28.
`
`X2Y also argues that the specifications of the asserted
`patents contradict the constructions. X2Y contends
`that, for example, the ′444 patent discloses that the
`electrodes on either side of a center conductor may
`be “electrically null, electrically complementary, ... or
`electrically opposite,” which, it argues, suggests that the
`claims should not be limited to “electrically opposite”
`conductors. ′444 patent col. 5 ll. 7–11. X2Y further
`contends that the ITC improperly relied on the alleged
`disclaimers in some of the priority patents because the
`asserted patents are only related to those patents as
`continuations-in-part.
`
`Finally, X2Y argues that the statements relied upon by
`the ITC do not constitute *1362 disavowal of claim
`scope. X2Y argues that the ′500 patent's reference to the
`“common conductive pathway electrode” as the “essential
`element among all embodiments” does not limit the claims
`because it says nothing about the electromagnetic state
`of the conductors surrounding it when the circuit is
`energized. It contends that a priority patent's description
`of the sandwich configuration as “universal to all the
`embodiments” is also not a disclaimer because the passage
`that the ITC relied upon otherwise uses permissive rather
`than mandatory language. ′350 patent col. 20 ll. 14–17,
`36–41.
`
`We conclude that the ITC correctly construed the
`electrode terms. The patents' statements that the presence
`of a common conductive pathway electrode positioned
`between paired electromagnetically opposite conductors
`is “universal to all the embodiments” and is “an essential
`element among all embodiments or connotations of the
`invention” constitute clear and unmistakable disavowal of
`claim scope. See GE Lighting Solutions, LLC v. AgiLight,
`Inc., 750 F.3d 1304, 1308–09 (Fed.Cir.2014). The standard
`for finding disavowal, while exacting, was met in this case.
`Id. at 1308.
`
`Specifically, we have held that labeling an embodiment
`or an element as “essential” may rise to the level
`of disavowal. Id. at 1309. Here, not only does the
`specification state that the “center common conductive
`pathway electrode” flanked by two differential conductors
`is “essential,” but it also spells out that it was an “essential
`element among all embodiments or connotations of the
`invention.” ′500 patent col. 19 ll. 22–23 (emphasis added);
`see id. Fig. 2; id. col. 18 l. 13, ll. 60–61; id. col. 19 ll. 24–25.
`
`the sandwich
`that
`The ′350 patent's statement
`configuration is a “feature [ ] universal to all the
`embodiments” reinforces this conclusion. ′350 patent col.
`20 l. 16. Like the “essential element” label, this phrase
`demonstrates a clear intention to limit the claim scope
`“using words or expressions of manifest exclusion or
`restriction.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299
`F.3d 1313, 1324 (Fed.Cir.2002). The relevant passage
`does include the permissive language that “the material
`having predetermined electrical properties may be one of
`a number in any of the embodiments.” ′350 patent col. 20
`ll. 17–19. But the specification further explains that “[n]o
`matter which material is used, the combination of common
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`X2Y Attenuators, LLC v. International Trade Com'n, 757 F.3d 1358 (2014)
`36 ITRD 545, 111 U.S.P.Q.2d 1607
`
`ground conductive plates and electrode conductive plates
`creates a plurality of capacitors to form a line-to-line
`differential coupling capacitor between and two line-to-
`ground decoupling capacitors from a pair of electrical
`conductors.” Id. col. 20 ll. 22–27 (emphasis added). Thus,
`although the passage states that the material may vary,
`it also explains that the general sandwich configuration
`remains the same because it is a “feature[ ] universal” to
`the invention. This is a clear and unmistakable disavowal
`of claim scope.
`
`X2Y's argument that some of the disclaimers are
`inapplicable because they appear only in priority patents
`to which the asserted patents are only related as
`continuations-in-part is without merit on the facts of this
`case. First, the “essential element” disavowal explicitly
`appears in one of the asserted patents, the ′500 patent.
`Second, the asserted ′500 and ′444 patents incorporate
`by reference the priority ′350 patent (which includes the
`“features universal” disavowal), and the ′444 patent also
`incorporates by reference the ′249 patent (which includes
`the “essential element” disavowal). The incorporated
`patents are “effectively part of the host [patents] as if [they]
`were explicitly contained *1363 therein.” 2 Telemac
`Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316,
`1329 (Fed.Cir.2001) (citations omitted); see Ultradent
`Prods., Inc. v. Life–Like Cosmetics, Inc., 127 F.3d 1065,
`1069 (Fed.Cir.1997) (citing Manual of Patent Examining
`Procedure § 608.01(p) (6th ed.1996)) (explaining that,
`unless indicated otherwise, incorporation by reference of
`a patent renders “the entire contents” of that patent's
`disclosure a part of the host patent); see also Harari v. Lee,
`656 F.3d 1331, 1335–36 (Fed.Cir.2011). As a result, the
`disclaimers of the incorporated patents are a part of the
`asserted patents.
`
`2
`
`The parties chose to treat the electrode terms across
`the three asserted patents as rising and falling
`together. See J.A. 131–32. Therefore, we do not
`separately address the ′241 patent.
`
`Of course, “incorporation by reference does not convert
`the invention of the incorporated patent into the invention
`of the host patent.” Modine Mfg. Co. v. U.S. Int'l
`Trade Comm'n, 75 F.3d 1545, 1553 (Fed.Cir.1996). And
`it is certainly possible that a clear and unmistakable
`disavowal in an incorporated patent is no longer so
`when placed in the context of the disclosure of the host
`patent. This, however, is not that case. Although the
`′444 patent mentions that, “[a]s used generally therein,”
`
`a conductive pathway could include electrode pairings
`that are “electrically null, electrically complementary,
`electrically differential, or electrically opposite,” ′444
`patent col. 4 l. 66—col. 5 l. 11, this teaching is not
`sufficient to blur the clear disavowals. The possibility that
`conductive pathways may include these structures is not
`inconsistent with the patents' statements that, of all the
`conceivable configurations, the sandwich configuration is
`a “feature [ ] universal” and an “essential element” of
`the inventions of the asserted patents. These disavowals
`therefore limit the scope of the claims of the ′444 and
`′500 patents. We agree with the ITC that, in light
`of the clear disavowals, the claims at issue are limited
`to “a common conductive pathway electrode positioned
`between paired electromagnetically opposite conductors.”
`Because X2Y conceded noninfringement based on this
`construction, we need not reach any other issues.
`
`CONCLUSION
`
`We affirm the ITC's determination of no violation of 19
`U.S.C. § 1337.
`
`AFFIRMED
`
`REYNA, Circuit Judge, concurring.
`I join the court's opinion in its entirety. I write separately
`to address an error in the claim construction approach
`adopted by the ALJ and the Commission. The error, while
`significant, did not affect the result affirmed by this court.
`
`Specifically, the ALJ and the Commission assumed a
`specific priority date that X2Y asserted as a defense to
`an invalidity challenge. The ALJ and the Commission
`then determined that the scope of the asserted claims
`was limited by “the invention” disclosed in earlier
`patents in the priority chain. This was error because the
`asserted claims derive from multiple continuation-in-part
`applications, and because the ALJ and the Commission
`failed to objectively construe the asserted claims before
`deciding whether the claims were entitled to priority.
`
`BACKGROUND
`
` © 2017 Thomson Reuters. No claim to original U.S. Government Works.
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`X2Y Attenuators, LLC v. International Trade Com'n, 757 F.3d 1358 (2014)
`36 ITRD 545, 111 U.S.P.Q.2d 1607
`
`The asserted patents belong to an extensive family
`claiming priority to the ′ *1364 350 patent. The
`priority chain for each asserted patent contains multiple
`continuation-in-part applications, including the ′249
`patent:
`
`incorporate by reference the
`The asserted patents
`disclosures of the ′350 and ′249 patents (“the
`earlier patents”) to varying degrees. The ′500 patent
`incorporates by reference the ′350 patent and shares
`a specification with the ′249 patent. The ′444 patent
`incorporates by reference the earlier patents but has
`a different specification. The ′241 patent also has a
`different specification, and does not incorporate by
`reference either of the earlier patents.
`
`Respondents argued below that X2Y's claims should be
`limited by the disclosures in the earlier patents. The ALJ
`agreed with Respondents:
`
`Respondents' position has merit.
`It is well-settled that, for a claim
`to receive priority to an earlier
`application, the claimed invention
`must be disclosed in the earlier
`application. The claim is therefore
`limited to the invention disclosed in
`the earlier application. Accordingly,
`the terms of the claims asserted in
`this investigation will be construed
`with reference to the disclosures of
`the ′350 and ′249 patents. 1
`
`1
`
`Certain Microprocessors, Components Thereof, and
`Prods. Containing Same, USITC Inv. No. 337–TA–
`781, Initial Determination at 44 (Jan. 16, 2013)
`(emphasis added) (internal citations omitted).
`
`The ALJ therefore construed the “electrode” terms in view
`of certain disclaimers of scope in the earlier patents.
`
`The Commission agreed with the ALJ's claim construction
`approach, explaining that statements of disavowal in
`the earlier patents should apply to the asserted claims
`because X2Y took the position that the claims “trace
`their priority through many generations of applications
`(including the ′249 patent) all the way to the ′350
`patent.” 2 The Commission apparently faulted X2Y for
`taking alternative positions as to priority:
`
`2
`
`3
`
`Certain Microprocessors, Components Thereof, and
`Prods. Containing Same, USITC Inv. No. 337–TA–
`781, Comm'n Op. at 11 (Mar. 4, 2014).
`
`X2Y chose to claim priority to its earlier patents, not
`only at the Patent and Trademark Office, but also in
`this investigation. As X2Y presented a case based upon
`priority to these earlier patents, it is not now at liberty
`to recast its patents in a different way. 3
`Id. at 12.
`
`On this basis, the Commission affirmed the ALJ's claim
`construction of the “electrode” terms.
`
`*1365 DISCUSSION
`
`The claim construction approach affirmed by the
`Commission is erroneous for three reasons. First, it is
`well settled that a written description analysis depends
`on a proper claim construction because, among other
`reasons, a claim is entitled to the priority date of an
`earlier application only if the earlier specification provides
`sufficient written support for the full scope of the claim. 4
`Where the claims have not been properly construed, the
`full scope of the claim is unknown, thereby rendering
`baseless any determination of written support in an earlier
`patent. 5 It follows that entitlement to priority cannot
`be decided without first construing the asserted claims.
`Similarly, it is improper to construe claims with the goal of
`arriving at a particular priority date, a measure that would
`violate a tribunal's “independent obligation to determine
`the meaning of the claims, notwithstanding the views
`asserted by the adversary parties.” 6
`
`4
`
`Anascape, Ltd. v. Nintendo of Am. Inc., 601 F.3d 1333,
`1335 (Fed.Cir.2010).
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`36 ITRD 545, 111 U.S.P.Q.2d 1607
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`5
`
`6
`
`See, e.g., Intirtool, Ltd. v. Texar Corp., 369 F.3d 1289,
`1296 (Fed.Cir.2004); C.R. Bard, Inc. v. M3 Sys., Inc.,
`157 F.3d 1340, 1360 (Fed.Cir.1998).
`
`Exxon Chem. Patents, Inc. v. Lubrizol Corp., 64 F.3d
`1553, 1555 (Fed.Cir.1995).
`
`Second, it is improper to “hold” the patentee to a
`priority date that it asserted as a defense to an invalidity
`challenge without first construing the claims and resolving
`invalidity issues. To be clear, invalidity considerations
`may inform claim construction in limited circumstances,
`but they cannot dictate the process. In this case, all the
`invalidity defenses raised by Respondents (anticipation,
`obviousness, indefiniteness, lack of written description
`and improper inventorship) required that the claims be
`construed first. X2Y did not bear an initial burden
`of proving non-invalidity—including that the patent
`antedates alleged prior art—because all patents are
`presumed valid. 7 Instead, Respondents had the burden
`to show invalidity by clear and convincing evidence.
`Only after Respondents established a prima facie case
`of invalidity would the burden have shifted to X2Y to
`prove priority over the invalidating prior art. 8 Therefore,
`it was error for the ALJ and the Commission to assume a
`priority date before construing the claims and addressing
`the invalidity issues.
`
`7
`
`8
`
`35 U.S.C. § 282.
`
`See PowerOasis, Inc. v. T–Mobile USA, Inc., 522 F.3d
`1299, 1305 (Fed.Cir.2008).
`
`And third, it was erroneous to treat X2Y's attempt
`to overcome allegedly invalidating prior art through a
`priority claim as an attempt by X2Y to “recast” its
`patents. 9 X2Y had a right to advocate for a broad claim
`construction that might ultimately find no support in the
`earlier patents to which it claimed priority. Had the ALJ
`and the Commission first construed the asserted claims
`and then determined that they were not entitled to claim
`priority to the ′350 or ′249 patents, the asserted patents
`would have been entitled to either the priority date of
`other applications in their respective priority chains (as
`X2Y in fact argued) or the filing date of their respective
`applications. Indeed, it is well established that “a patentee
`may argue in the alternative for different priority dates at
`trial.” 10
`
`9
`
`Comm'n Op. at 12.
`
`10
`
`Ajinomoto Co. v. Int'l Trade Comm'n, 597 F.3d 1267,
`1277 (Fed.Cir.2010).
`
`*1366 Due to the foregoing errors, the ALJ and
`the Commission gave improper weight to statements
`regarding the scope of “the invention” contained in the
`earlier patents' specifications. While the scope of claims
`may be limited by statements in the specification of the
`patent, it does not follow that claims in a continuation-
`in-part patent are necessarily limited by the specification
`of a patent to which the continuation-in-part claims
`priority. The disclosures of related patents may inform the
`construction of claim terms common across patents, but
`it is erroneous to assume that the scope of the invention
`is the same such that disclaimers of scope necessarily
`apply across patents, particularly when continuation-in-
`part applications are involved. A continuation-in-part
`application is the vehicle by which a patent applicant
`is allowed to add “new matter” to another pending
`application:
`
`A continuation-in-part application
`is
`just what
`its name
`implies.
`It partly continues subject matter
`disclosed in a prior application,
`but adds new subject matter not
`disclosed in the prior application.
`Thus, some subject matter of a CIP
`application is necessarily different
`from the original subject matter. 11
`
`11
`
`Univ. of W. Va., Bd. of Trs. v. VanVoorhies, 278 F.3d
`1288, 1297 (Fed.Cir.2002).
`
`In other words, the invention claimed in a continuation-
`in-part application does not have to be limited to the
`invention disclosed in a priority patent. To the extent
`that a continuation-in-part application claims new matter,
`entitlement to priority is decided on a claim-by-claim
`basis, and various claims may be entitled to different
`priority dates. 12
`
`12
`
`See, e.g., Santarus, Inc. v. Par Pharm., Inc., 694 F.3d
`1344, 1352, 1354 (Fed.Cir.2012).
`
`Although the path followed by the ALJ and the
`Commission was error, the construction they reached
`was correct because the disclaimer statements that
`informed the ALJ and the Commission's construction
`were incorporated explicitly or by reference in some of the
`
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`X2Y Attenuators, LLC v. International Trade Com'n, 757 F.3d 1358 (2014)
`36 ITRD 545, 111 U.S.P.Q.2d 1607
`
`asserted patents, and X2Y agreed to treat all “electrode”
`terms consistently across the asserted patents. Under the
`proper claim construction analysis, as outlined by this
`court's opinion, the relevant intrinsic record contains
`sufficient clear and unmistakable disavowal of claim scope
`
`to support the construction adopted by the ALJ and the
`Commission.
`
`All Citations
`
`757 F.3d 1358, 36 ITRD 545, 111 U.S.P.Q.2d 1607
`
`End of Document
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