Case: 14-1176 Document: 101-2 Page: 1 Filed: 02/18/2015
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`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`INTERDIGITAL COMMUNICATIONS, INC.,
`INTERDIGITAL TECHNOLOGY CORPORATION,
`IPR LICENSING, INC.,
`Appellants
`
`v.
`
`UNITED STATES INTERNATIONAL TRADE
`COMMISSION,
`Appellee
`
`NOKIA, INC., MICROSOFT MOBILE OY,
`Intervenors
`
`ZTE CORPORATION, ZTE (USA) INC.,
`Intervenors
`______________________
`
`2014-1176
`______________________
`
`Appeals from the United States International Trade
`Commission in Investigation No. 337-TA-800.
`______________________
`
`Decided: February 18, 2015
`______________________
`
`RICHARD P. BRESS, Latham & Watkins LLP, Washing-
`ton, DC, argued for appellants. Also represented by
`
` Ex. 2023-0001
`
`IPR Licensing, Inc.
`Exhibit 2023
`ZTE Corp v. IPR Licensing, Inc.
`IPR2014-00525
`
`

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` INTERDIGITAL v. ITC
`
`MAXIMILIAN A. GRANT, BERT C. REISER, GABRIEL BELL,
`RON E. SHULMAN; MICHAEL BRETT LEVIN, DAVID S.
`STEUER, Wilson, Sonsini, Goodrich & Rosati, PC, Palo
`Alto, CA.
`
`PANYIN HUGHES, Office of the General Counsel, Inter-
`national Trade Commission, Washington, DC argued for
`appellee. Also represented by WAYNE W. HERRINGTON.
`
`PATRICK J. FLINN, Alston & Bird LLP, Atlanta, Geor-
`gia, argued for intervenors Nokia Inc., Microsoft Mobile
`Oy. Also represented by JOHN D. HAYNES, SCOTT
`BENJAMIN PLEUNE, ROSS RITTER BARTON.
`
`JAY H. REIZISS, Brinks Gilson & Lione, Washington,
`DC, for intervenor ZTE Corporation, ZTE (USA) Inc. Also
`represented by CYNTHIA A. HOMAN, CHARLES M.
`MCMAHON, DAVID LINDNER, LAURA A. LYDIGSEN.
`______________________
`
`Before PROST, Chief Judge, MAYER and LOURIE, Circuit
`Judges.
`
`
`
`PROST, Chief Judge.
`InterDigital Communications, Inc., InterDigital Tech-
`nology Corporation, and IPR Licensing, Inc. (collectively,
`“InterDigital”) appeal from the final determination of the
`United States International Trade Commission (“Com-
`mission”) finding no violation of Section 337 of the Tariff
`Act of 1930, as amended, 19 U.S.C. § 1337. See Certain
`Wireless Devices with 3G Capabilities and Components
`thereof, Inv. No. 337-TA-800 (Dec. 19, 2013) (“Commission
`Decision”). For the reasons set forth below, we affirm.
`BACKGROUND
`The patents at issue are directed to cellphone technol-
`ogy, and in particular, code division multiple access
`(“CDMA”) networks. For purposes of this appeal, the
`
` Ex. 2023-0002
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`INTERDIGITAL v. ITC
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`following simplified overview of the technology is suffi-
`cient.1
`A CDMA network allows multiple cellphones, referred
`to in the patents as subscriber units, to use the same
`radio frequencies for multiple simultaneous communica-
`tions. A CDMA system is able to do this by modulating
`the data with unique codes. One problem with CDMA
`systems is that signals within the same geographical area
`can interfere with one another, and that problem is exac-
`erbated as transmission power levels are increased.
`A. Patents at Issue
`This appeal involves U.S. Patent Nos. 7,706,830 (“’830
`patent”), 8,009,636 (“’636 patent”), 7,502,406 (“’406 pa-
`tent”), 7,706,332 (“’332 patent”), and 7,616,970 (“’970
`patent”). Throughout this case, the patents have been
`grouped as follows: (1) the Power Ramp-Up Patents (the
`‘830 and ’636 patents), (2) the Power Control Patents
`(the ’406 and ’332 patents), and (3) the Dual Mode Patent
`(the ’970 patent). We address each patent group below.
`1. The Power Ramp-Up Patents
`The Power Ramp-Up Patents address the way a sub-
`scriber unit establishes a connection with a base station
`in order to initiate a communication such as a voice call.
`In particular, these patents describe a subscriber unit
`that, in order to avoid unnecessary power usage and
`minimize interference with other connections, gradually
`ramps up the power level of its transmissions before
`initiating a call. See ’830 patent col. 6 ll. 55–67. The
`subscriber unit starts transmitting at a low power level
`
`
`1 We provided a more detailed description of this
`technology in InterDigital Commc’ns, LLC v. Int’l Trade
`Comm’n, 690 F.3d 1318, 1320–21 (Fed. Cir. 2012), an
`appeal involving related patents and technology.
`
` Ex. 2023-0003
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` INTERDIGITAL v. ITC
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`and then repeatedly sends transmissions—called “short
`codes”—at increasing power levels until the base station
`detects the transmissions and sends back an acknowl-
`edgement to the subscriber unit. Id. The transmissions
`are called “short codes” because they are shorter than a
`regular length code. Id. col. 7 ll. 40–41. Once the
`acknowledgement is received, a substantive communica-
`tion such as a voice call can be initiated. Id. col. 6 ll. 63–
`67.
`InterDigital asserts independent claim 1 and depend-
`ent claims 2, 3, and 5 of the ’830 patent and independent
`claim 1 and dependent claims 2, 4, and 6–8 of the ’636
`patent. Claim 1 of the ’830 patent, which is representa-
`tive for purposes of this appeal, provides in relevant part:
`1. A wireless code division multiple access
`(CDMA) subscriber unit comprising:
` a transmitter configured such that, when the
`subscriber unit is first accessing a CDMA
`network and wants to establish communi-
`cations with a base station associated with
`the network over a communication channel
`to be indicated by the base station, the
`transmitter successively sends transmis-
`sions prior to the subscriber unit receiving
`from the base station an indication that at
`least one of the successively sent transmis-
`sions has been detected by the base station;
`wherein each of the successively sent trans-
`missions is produced using a sequence of
`chips, wherein the sequence of chips is not
`used to increase bandwidth;
`. . . .
`wherein each of the successively sent trans-
`missions is shorter than the message;
`
` Ex. 2023-0004
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`. . . .
`Id. col. 10 l. 54–col. 11 l. 16 (emphases added).
`2. The Power Control Patents
`The Power Control Patents relate to how the sub-
`scriber unit and the base station adjust their transmis-
`sion power level after a connection is established.
`See ’406 patent col. 5 ll. 46–66. In particular, the patents
`describe sending messages back and forth indicating
`whether the power level should be increased or decreased.
`Id. These messages are known as “adaptive,” id. col. 2 ll.
`29–30, or “automatic power control” information (“APC
`information”), id. col. 5 ll. 48–50.
`For the ’406 patent, InterDigital asserts dependent
`claims 6, 13, 20, and 26 (which depend, respectively, from
`independent claims 1, 7, 15, and 21) and independent
`claim 29. For the ’332 patent, InterDigital asserts claims
`2–4, 7–11, 14, 22–24 and 27. Claims 1 and 7 of the ’406
`patent, which InterDigital asserts are representative for
`present purposes, provide:
`1. A method for controlling transmission pow-
`er levels of a code division multiple access
`(CDMA) subscriber unit, the method comprising:
`receiving by the subscriber unit a power con-
`trol bit on a downlink control channel, the
`power control bit indicating either an in-
`crease or decrease in transmission power
`level;
`transmitting a plurality of channels by the
`subscriber unit, the plurality of channels
`including a traffic channel and a reverse
`control channel;
`in response to the received power control bit,
`adjusting a transmission power level of
`both the traffic channel and the reverse
`
` Ex. 2023-0005
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` INTERDIGITAL v. ITC
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`control channel, wherein the transmission
`power level of the traffic channel and the
`reverse control channel are different; and
`transmitting the traffic channel and the re-
`verse control channel at their respective ad-
`justed transmit power levels.
`’406 patent col. 14 l. 57–col. 15 l. 9 (emphases added).
`7. A method for controlling transmission pow-
`er levels of a code division multiple access
`(CDMA) subscriber unit, the method comprising:
`receiving by the subscriber unit a series of
`power control bits on a downlink channel,
`each power control bit indicating either an
`increase or decrease in transmission power
`level;
`transmitting a plurality of channels by the
`subscriber unit, the plurality of channels
`including a traffic channel and a reverse
`control channel;
`adjusting a transmission power level of both
`the traffic channel and the reverse control
`channel in response to the same bits in the
`received series of power control bits, where-
`in the transmission power level of the traf-
`fic channel and the reverse control channel
`are different; and
`transmitting the traffic channel and the re-
`verse control channel at their respective ad-
`justed transmit power levels.
`Id. col. 15 ll. 28–45 (emphases added).
`3. The Dual Mode Patent
`The Dual Mode Patent relates generally to subscriber
`units that can switch between different types of networks,
`
` Ex. 2023-0006
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`such as CDMA cellular networks and local wireless net-
`works, to transfer data. ’970 patent abstract. According
`to InterDigital, the patented innovation describes a way
`for the subscriber unit itself to make the CDMA commu-
`nication channels available for use rather than waiting
`for the base station to allocate a channel.
`For the Dual Mode Patent, InterDigital asserts inde-
`pendent claim 1 and dependent claims 2–9. Claim 1
`states in relevant part:
`1. A subscriber unit comprising:
`a cellular transceiver configured to communi-
`cate with a cellular network via a cellular
`layered communication protocol;
`. . . .
`wherein the cellular layered communication
`protocol includes a plurality of layers above
`a physical layer, and a plurality of physical
`layer channels are available for assignment
`for communication with the cellular net-
`work and a communication session above
`the physical layer is maintained when all
`assigned physical layer channels have been
`released.
`Id. col. 11 ll. 5–24 (emphasis added).
`B. Commission Proceedings
`In 2011, InterDigital filed a complaint with the Com-
`mission, alleging that several importers were violating
`Section 337 by importing, selling for importation, or
`selling after importation into the United States wireless
`devices that infringe InterDigital’s patents. The Commis-
`sion instituted an investigation and named several re-
`spondents,
`including
`intervenors Nokia Inc., Nokia
`
` Ex. 2023-0007
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` INTERDIGITAL v. ITC
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`Corporation,2 ZTE Corporation, and ZTE (USA) Inc.
`(collectively, “Intervenors”). 76 Fed. Reg. 54,252 (Aug. 31,
`2011). After a seven-day hearing, the Administrative Law
`Judge (“ALJ”) issued a 448-page initial determination.
`Certain Wireless Devices with 3G Capabilities and Com-
`ponents thereof, Inv. No. 337-TA-800 (June 28, 2013)
`(“Initial Determination”). The ALJ found the Power
`Ramp-Up Patents and the Power Control Patents not
`infringed and held the Dual Mode Patent invalid as
`obvious. After making a few modifications, the Commis-
`sion upheld the rulings. InterDigital appealed, challeng-
`ing the construction of a single claim term in each of the
`patent groups at issue.
`DISCUSSION
`We review the Commission’s legal rulings de novo and
`its findings of fact for substantial evidence. Osram GmbH
`v. Int’l Trade Comm’n, 505 F.3d 1351, 1355 (Fed. Cir.
`2007). In construing claims, we rely primarily on the
`claim language, the specification, and the prosecution
`history. Phillips v. AWH Corp., 415 F.3d 1303, 1314–17
`(Fed. Cir. 2005) (en banc). We may also seek guidance
`from extrinsic evidence such as expert testimony, diction-
`aries, and treatises. Id. at 1317–18.
`A. The Power Ramp-Up Patents
`At issue concerning the Power Ramp-Up Patents is
`the construction of “successively sends [or sent] transmis-
`sions.” The ALJ construed the term to mean “transmits
`
`2 Nokia Corporation subsequently transferred its
`Devices & Services Business to Microsoft Mobile Oy.
`Microsoft Mobile Oy was correspondingly substituted as
`an intervenor in this appeal. InterDigital Commc’ns, LLC
`v. Int’l Trade Comm’n, No. 2014-1176 (Fed. Cir. July 11,
`2014) (order granting motion to substitute intervenor).
`
`
` Ex. 2023-0008
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`to the base station, one after the other, codes that are
`shorter than a regular length code,” and the Commission
`adopted that construction. Commission’s Decision at 19.
`The Commission also adopted the ALJ’s conclusion that
`the patents “disclose that the codes successively transmit-
`ted during the random access process (i.e., the short
`codes) are neither modulated with data, nor used to
`modulate data.” Id. at 26. In so holding, the Commission
`relied on the fact that previously, when discussing a
`patent with the same specification as the Power Ramp-Up
`Patents, the Federal Circuit determined that:
`the specification describes various codes, such as
`pilot codes and short codes, as “spreading codes”
`even though they carry no data and are not in-
`tended to do so.
`InterDigital Commc’ns, 690 F.3d at 1326 (emphases
`added).
`
`The Commission also cited the following from the
`specification:
`The preferred embodiment of the present inven-
`tion utilizes “short codes” and a two-stage com-
`munication
`link establishment procedure
`to
`achieve fast power ramp-up without large power
`overshoots. The spreading code transmitted by the
`subscriber unit 16 is much shorter than the rest of
`the spreading codes (hence the term short code),
`so that the number of phases is limited and the
`base station 14 can quickly search through the
`code. The short code used for this purpose carries
`no data.
`’830 patent col. 7 ll. 36–44 (emphases added).
`Finally, the Commission relied on InterDigital’s ex-
`pert, who testified as follows:
`
` Ex. 2023-0009
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`Q. All right. Now the successively sent transmis-
`sions of claim 1, those are the short codes de-
`scribed in the 830 patent, correct?
`A. Yes, the repeated transmissions of the short
`code are the successively sent transmissions.
`Q. And in the power ramp-up patents, the short
`code is not applied to a data signal, correct?
`A. Correct.
`Commission Decision at 28.
`The Commission then affirmed the ALJ’s finding that
`the accused products do modulate data and thus do not
`meet the “successively sends transmissions” limitation.
`InterDigital now presents several arguments as to
`why “the Commission erred in limiting the successively
`transmitted short codes to codes ‘not modulated by data.’”
`Appellants’ Br. 33. First, InterDigital argues that the
`Commission improperly limited the claim term by relying
`on statements concerning only a preferred embodiment.
`This argument is not without weight. The limitation
`that short codes carry no data does follow a description of
`the preferred embodiment. And, as InterDigital argues,
`the contested limitation is not found in the only other
`places that short codes are mentioned, the Abstract and
`Summary of the Invention. See ’830 patent abstract (“The
`short code is a sequence for detection by the base station
`which has a much shorter period than a conventional
`access code.”); id. col. 3 ll. 22–24 (“The short code is a
`sequence for detection by the base station which has a
`much shorter period than a conventional spreading
`code.”).
`But the argument does not carry sufficient weight.
`Given that the entire invention is described by reference
`to a preferred embodiment, the argument that the limita-
`tion is raised in the context of the preferred embodiment
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` Ex. 2023-0010
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`is less persuasive. And the fact that the carries-no-data
`limitation is expressly tied to the purpose of the short
`codes, which InterDigital does not dispute is universal to
`the invention, also undermines this argument.
`And we do not think that the summary statements
`about “short codes” in the Abstract and Summary of the
`Invention—where full explanations of the term are not
`expected—are sufficient to justify a broader reading of
`short codes. See 37 C.F.R. § 1.72(b) (“The purpose of the
`abstract is to enable the Office and the public generally to
`determine quickly from a cursory inspection the nature
`and gist of the technical disclosure.”).
`In the end, InterDigital’s argument that the carries-
`no-data limitation applies only to a preferred embodi-
`ment, although not trivially dismissed, is insufficient to
`overcome this court’s prior conclusions, a proper reading
`of the specification, and InterDigital’s own expert testi-
`mony.
`Second, InterDigital argues that “the Commission’s
`construction improperly excludes an express preferred
`embodiment.” Appellants’ Br. 44. The Power Ramp-Up
`Patents’ specification expressly incorporates by reference
`U.S. Patent No. 5,799,010 (“’010 patent”). According to
`InterDigital, in the ’010 patent “the short codes are modu-
`lated by ‘data’ in the sense that the selection from among a
`known set of short codes could indicate [information].” Id.
`at 45 (emphasis added). InterDigital then argues that, in
`that sense, the accused products do the same thing, and
`should be found to infringe.
`As an initial matter, this argument would have been
`more effective at challenging the Commission’s infringe-
`ment analysis and not its claim construction. Whether
`the accused products, in some sense, do the same thing as
`disclosed in the patent sheds little light on the proper
`construction of the claim term, the only issue before us.
`Further, InterDigital’s argument hinges on conclusory
`
` Ex. 2023-0011
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`statements about what the ’010 patent discloses, and
`InterDigital fails to properly develop or support those
`conclusions. InterDigital’s citation to a single table in
`the ’010 patent is insufficient. Ultimately, InterDigital’s
`argument concerning the ’010 patent is unpersuasive.
`Third, InterDigital argues that “[t]he Commission’s
`supporting citations indicate that it also reasoned that
`the short codes cannot carry data because that would
`purportedly make the successively sent transmissions
`unrecognizable to the base station, rendering the system
`inoperable.” Id. at 40. InterDigital then goes on to de-
`scribe why, in its view, this rationale cannot support the
`Commission’s construction and corresponding finding of
`no infringement. In response, Intervenors and the Com-
`mission contend that InterDigital’s argument was im-
`properly raised for the first time on appeal. Ultimately,
`we need not reach these arguments and counterargu-
`ments because, at most, InterDigital’s position merely
`undermines unnecessary support for the Commission’s
`holding. The Commission’s construction can stand with-
`out this support.
`Fourth, InterDigital argues that the principles of
`claim differentiation support not limiting short codes to
`codes that do not carry data. According to InterDigital,
`other related patents confirm that short codes can include
`data. In those patents some of the independent claims
`provide that the transmitted signals “carry no data,”
`while others do not. InterDigital argues that under the
`principles of claim differentiation, the short codes in
`claims that do not have a carry-no-data limitation, can
`carry data. But, as the Commission points out, claim
`differentiation arguments are strongest when distinguish-
`ing dependent claims from their independent claims. Cf.
`World Class Tech. Corp. v. Ormco Corp., 769 F.3d 1120,
`1125 (Fed. Cir. 2014) (“The doctrine of claim differentia-
`tion creates a presumption that distinct claims, particu-
`larly an independent claim and its dependent claim, have
`
` Ex. 2023-0012
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`INTERDIGITAL v. ITC
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`different scopes.”). Here, InterDigital is attempting to
`extract meaning by comparing independent claims that
`are distinguishable in other ways. See Andersen Corp. v.
`Fiber Composites, LLC, 474 F.3d 1361, 1370 (Fed. Cir.
`2007) (“A further reason for not applying the doctrine of
`claim differentiation in this case is that the [claims at
`issue] are not otherwise identical . . . . Instead, there are
`numerous other differences varying the scope of the
`claimed subject matter.”). Further, those patents, alt-
`hough related to the present patents, are not the patents
`at issue in this case. The force of claim differentiation
`here is diminished and insufficient to overcome the evi-
`dence supporting the Commission’s construction.
`We have considered InterDigital’s remaining argu-
`ments concerning these patents and find them unpersua-
`sive.
` We affirm the Commission’s construction of
`“successively sends [or sent] transmissions,” and corre-
`spondingly affirm its finding of no infringement of the
`Power Ramp-Up Patents.
`B The Power Control Patents
`At issue concerning the Power Control Patents is the
`Commission’s construction of “power control bit.” The
`ALJ construed the term to mean “single-bit power control
`information transmitted at an APC data rate equivalent
`to the APC update rate.” Initial Determination at 101.
`The Commission modified the construction to be simply
`“single-bit power control information,” and struck the
`later part of the ALJ’s construction. Commission Decision
`at 30. It then affirmed the ALJ’s finding of no infringe-
`ment based on the ALJ’s finding that the accused prod-
`ucts use only multi-bit power control commands.3 Id. at
`38–39.
`
`
`3 Having found no infringement the Commission
`did not address the ALJ’s determination that the claims
`
` Ex. 2023-0013
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`On appeal, InterDigital contends that the Commission
`erred in limiting the term to single-bit power control
`commands. InterDigital presents several arguments in
`support of its position. First, InterDigital turns to the
`language of the claims and argues that some of the ’406
`patent claims, such as claims 6 and 20, recite “the re-
`ceived power control bit,” whereas other claims, such as
`claims 13 and 26, recite “the received series of power
`control bits.” InterDigital argues that if the latter claims
`are not construed to include multi-bit power control
`commands, “the express distinction in the language of
`these claims would be meaningless.” Appellants’ Br. 51.
`But this claim differentiation argument is unpersua-
`sive. As noted above, principles of claim differentiation
`are often of limited use where, as here, one is comparing
`two independent claims and not dependent claims with
`the claims from which they depend. And ultimately, the
`latter claims are sufficiently differentiated by requiring a
`series of single-bit power control commands, and therefore
`need not rely on the inclusion of multi-bit power control
`commands for differentiation. It is not the case, as Inter-
`Digital contends, that under the Commission’s construc-
`tion “claims 13 and 26 ‘cover[] exactly the same subject
`matter’ as claims 6 and 20, respectively.” Id.
`Finally, the plain language of the claims shows that
`multi-bit power commands were not encompassed within
`the scope of those claims, even where a series of power
`
`were not invalid as anticipated. Intervenors argue that
`“[o]n de novo review, the Court should reverse this finding
`and conclude that, under the correct priority date, all
`asserted claims are anticipated by the [prior art].” Inter-
`venors’ Br. 52. Because we affirm the Commission’s
`finding of no infringement, we do not reach the merits of
`this argument or whether this issue is even properly
`before us.
`
` Ex. 2023-0014
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`control bits is referenced. For example, the relevant part
`of asserted claim 26 of the ’406 patent states:
`a despreading and demultiplexing device config-
`ured to recover a series of power control bits from
`a downlink channel, wherein each power control
`bit has a value indicating a command to either in-
`crease or decrease transmission power level.
`’406 patent col. 16 ll. 36–40 (emphases added).
`Second, InterDigital turns to the specifications and
`argues that the portions of the specifications relied on by
`the Commission relate only to the preferred embodiment.
`As noted by the Commission, the specifications do not use
`the term “power control bit,” instead discussing APC
`information. Commission Decision at 35–36. The Com-
`mission thus looked to the discussion of APC information
`to inform its construction of “power control bit.” For
`example, the Commission relied on the following state-
`ments, among others, to conclude that APC information is
`conveyed as single-bit commands:
`APC information is always conveyed as a single
`bit of information, and the APC Data Rate is
`equivalent to the APC update rate.
`’406 patent col. 9 ll. 46–48 (emphasis added). Further,
`[t]he APC signal is transmitted as one bit signals
`on the APC Channel. The one-bit signal repre-
`sents a command to increase (signal is logic-high)
`or decrease (signal is logic-low) the associated
`transmit power. In the described embodiment, the
`64kbps APC data stream is not encoded or inter-
`leaved.
`Id. col. 6 ll. 47–52 (emphases added). Similarly, in
`the ’332 patent:
`The APC bits are transmitted as one bit up or
`down signals on the APC channel. In the de-
`
` Ex. 2023-0015
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`scribed embodiment, the 64 kbs APC data stream
`is not encoded or interleaved.
`’332 patent col. 64 ll. 12–14 (emphasis added).
`InterDigital argues that these limiting statements are
`all confined to preferred embodiments. But this argument
`is unpersuasive. These statements do appear in sections
`describing preferred embodiments. That point, however,
`carries limited weight because in both patents the entire
`invention “has been described in terms of the exemplary
`embodiment.” ’406 patent col. 14 ll. 51–52. There is no
`discussion of a broader meaning for the term other than
`boilerplate language that “it is understood by those
`skilled in the art that the invention may be practiced with
`modifications to the embodiment that are within the scope
`of the invention as defined by the following claims.” Id.
`col. 14 ll. 52–55.
`Further, and most importantly, the language of the
`excerpts shows that the concept of single-bit power control
`commands is not limited to preferred embodiments. As to
`the first excerpt, the use of “always” when referring to the
`use of “single bit of information,” but not when referring
`to the APC Data Rate, indicates that the single-bit limita-
`tion is universal to the invention, whereas the APC Data
`Rate is not. The second and third excerpts contain that
`same distinction, expressly limiting certain characteris-
`tics of the APC data stream to the “described embodi-
`ment,” but not so limiting the concept of single-bit power
`control information.
`InterDigital also argues that a skilled artisan at the
`time of the invention would have understood the term
`“power control bit” in the same way as that term was used
`in an industry standard with which the accused devices
`comply. And under that standard, a “power control bit”
`can be represented by multiple symbols and, in turn,
`multiple underlying bits.
`
` Ex. 2023-0016
`
`

`

`Case: 14-1176 Document: 101-2 Page: 17 Filed: 02/18/2015
`
`INTERDIGITAL v. ITC
`
`17
`
`But InterDigital provides no intrinsic evidence to
`support its view that “power control bit” was defined the
`same way in the Power Control Patents as in the industry
`standard. And, to the extent that InterDigital is implying
`that the commission erred in its construction of “bit,” the
`argument is unpersuasive because the adopted construc-
`tion also uses the term “bit,” without restriction as to
`what constitutes a bit.
`In sum, InterDigital’s arguments that the Commis-
`sion erred in construing “power control bit” are unpersua-
`sive. We affirm the Commission’s construction and its
`corresponding finding of no infringement.
`C. The Dual Mode Patent
`The Commission adopted the ALJ’s holding that the
`claims of the Dual Mode Patent are invalid as obvious. At
`issue on appeal is the construction of “a plurality of physi-
`cal layer channels are available for assignment for com-
`munication with the cellular network.” The ALJ adopted
`InterDigital’s proposed construction of the term, constru-
`ing it to mean “two or more physical layer channels
`allocable by the subscriber unit for data communication.”
`Initial Determination at 303 (emphasis added).
`As part of the obviousness holding, the ALJ reasoned
`that (1) in the context of the ’970 patent, “allocation”
`means the same thing as “use,” (2) the prior art subscrib-
`er units use two or more channels to transmit data, and,
`thus, (3) the prior art discloses the contested limitation.
`Given that the ALJ adopted InterDigital’s proposed
`construction, InterDigital understandably does not chal-
`lenge the express construction. Instead, it argues that the
`ALJ improperly modified the construction when doing its
`obviousn