Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 1 of 24 Page|D #: 3296
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`SPRINT 1112
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`No. 6:13CV438
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`No. 6:13CV439
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`No. 6: 13CV440
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`No. 6:13CV441
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`No. 6: 13CV443
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`No. 6: 13CV444
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`§ §
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`§ § §
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`§ §
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`§
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`§
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`§ § §
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`§ §
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`§
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`§ § §
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`§ §
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`§
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`§
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`§ § §
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`§ §
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`§
`§
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`§ § §
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`§ §
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`§
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`§
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`§ § §
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`ADAPTIX, INC.
`
`v.
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`HUAWEI TECH. CO. LTD., ET AL.
`
`ADAPTIX, INC.
`
`v.
`
`HUAWEI TECH. CO. LTD., ET AL.
`
`ADAPTIX, INC.
`
`v.
`
`HUAWEI TECH. CO. LTD., ET AL.
`
`ADAPTIX, INC.
`
`v.
`
`HUAWEI TECH. CO. LTD., ET AL.
`
`ADAPTIX, INC.
`
`v.
`
`ZTE CORPORATION, ET AL.
`
`ADAPTIX, INC.
`
`v.
`
`ZTE CORPORATION, ET AL.
`
`

`
`Case 6:13—cv—0O444—MHS—CMC Document 90 Filed 09/19/14 Page 2 of 24 PageID #: 3297
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`ADAPTIX, INC.
`
`v.
`
`ZTE CORPORATION, ET AL.
`
`ADAPTIX, INC.
`
`v.
`
`ZTE CORPORATION, ET AL.
`
`No. 6:l3CV445
`
`No. 6:l3CV446
`
`0O'J0O'J0O'J0O'J0O'J0O'J0O'J0O'J0O'J0O'JOO00O'J0O'J
`
`MEMORANDUM OPINION AND ORDER
`
`The above-referenced case was referred to the undersigned United States Magistrate
`
`Judge for pre-trial purposes in accordance with 28 U.S.C. § 636. Before the Court are Plaintiff’ s
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`Opening Claim Construction Brief (Dkt. No. 74), Defendants’ response (Dkt. No. 82), and
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`Plaintiff’ s reply (Dkt. No. 86).1 Also before the Court are the parties’ Local Patent Rule
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`(“P.R.”) 4-3 Joint Claim Construction and Prehearing Statement (Dkt. No. 66) and P.R. 4-5(d)
`
`Joint Claim Construction Chart (Dkt. No. 88).
`
`A claim construction hearing, in accordance with Markman V. Westview Instruments,
`
`Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), afl’d, 517 U.S. 370 (1996), was held in Tyler on
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`September 11, 2014. After hearing the arguments of counsel and reviewing the relevant
`
`pleadings, presentation materials, other papers, and case law, the Court finds the disputed terms
`
`of the patents-in-suit should be construed as set forth herein.
`
`1 References to docket numbers herein are to Civil Action No. 6: 13-CV-438 unless otherwise
`indicated.
`
`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 3 of 24 Page|D #: 3298
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`Table of Contents
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`I. BACKGROUND ....................................................................................................................... 4
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`II. LEGAL PRINCIPLES ........................................................................................................... 5
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`III. CONSTRUCTION OF AGREED TERMS ........................................................................ 7
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`IV. CONSTRUCTION OF DISPUTED TERMS ..................................................................... 8
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`A. “subcarrier selection” .......................................................................................................... .. 8
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`B. “pilot symbols”.................................................................................................................. .. 11
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`C. “[arbitrarily ordering the / arbitrarily ordered] set of candidate subcarriers as clusters of
`subcarriers” ....................................................................................................................... .. 17
`
`D.
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`“a system employing orthogonal fiequency division multiple access (OFDMA),”
`“subcarrier allocation for OFDMA,” and “OFDMA subcarriers” .................................... .. 18
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`V. CONCLUSION ................................................................................................................... .. 22
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`EXHIBIT A ................................................................................................................................. 23
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`EXHIBIT B .................................................................................................................................. 24
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 4 of 24 Page|D #: 3299
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`I. BACKGROUND
`
`Plaintiff brings suit alleging infiingement of United States Patents No. 6,947,748 (“‘748
`
`patent”) and 7,454,212 (“‘212 patent”) (collectively, the “patents-in-suit”). Both patents-in-suit
`
`are titled “OFDMA with Adaptive Subcarrier-Cluster Configuration and Selective Loading.”
`
`The ‘748 patent issued on September 20, 2005, and bears a filing date of December 15, 2000.
`
`The ‘212 patent issued on November 18, 2008, bears a filing date of August 8, 2005, and is a
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`continuation of the ‘748 patent. Because the patents-in-suit share a common written description
`
`and figures, citations to the specification shall be to the ‘748 patent only.
`
`In general, the patents-in-suit relate to wireless communications, such as for cellular
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`telephones. More specifically, the patents-in-suit relate to orthogonal frequency division multiple
`
`access (“OFDMA”),
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`in which communication frequency bandwidth is divided into smaller
`
`“subcarriers.” See ‘748 patent, 1:15-18. These subcarriers are at closely-spaced frequencies but
`
`are “orthogonal,” meaning that they do not substantially interfere with one another. See id. As
`
`Defendants further explain, “each communication device will ‘listen’ to only a specific set of
`7
`fiequencies at specific times.’ Dkt. No. 82 at 5. The patents-in-suit disclose systems and
`
`methods for allocating subcarriers among multiple “subscribers,” such as mobile cellular
`
`telephone units.
`
`The Abstracts of the patents-in-suit state:
`
`In one
`A method and apparatus for subcarrier selection for systems is described.
`embodiment, the system employs orthogonal fiequency division multiple access
`(OFDMA).
`In one embodiment, a method for subcarrier selection comprises each
`of multiple subscribers measuring charmel and interference information for
`subcarriers based on pilot symbols received fiom a base station, at least one of
`subscribers
`selecting a
`set of candidate subcarriers, providing feedback
`information on the set of candidate subcarriers to the base station, and the one
`subscriber receiving an indication of subcarriers of the set of subcarriers selected
`by the base station for use by the one subscriber.
`
`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 5 of 24 PageID #: 3300
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`Plaintiff asserts claims 6-9, 11, and 19-22 of the ‘748 patent and claims 1-4, 8-13, 15, 16,
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`18-21, and 23-30 of the ‘212 patent. Dkt. No. 74 at 1. Plaintiff submits the patents-in-suit relate
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`to technology that is now used in the Long Term Evolution (“LTE”) standard for mobile wireless
`
`communications systems, which is sometimes referred to in common parlance as “4G LTE.” See
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`Dkt. No. 74 at 2; Dkt. No. 82 at 5.
`
`The Court previously construed the patents-in-suit in Adaptix, Inc. v. AT&T Mobility
`
`LLC', et al., and related cases, in which the Court held a claim construction hearing on March 5,
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`2014. Civil Action No. 6:12-CV-17 (“AT&T’); see Civil Action Nos. 6: 12-CV-20, -120.
`
`In that
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`group of cases, the Court entered a claim construction order on March 12, 2014. See AT&T, Dkt.
`
`No. 180; see also id., Dkt. No. 197, 5/29/2014 Order (overruling objections).
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`Further, Judge Paul Grewal of the Northern District of California construed various terms
`
`in the ‘748 patent and the ‘212 patent on December 19, 2013. Adaptix, Inc. V. Motorola Mobility
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`LLC', et al., No. 5:13-cv-1774, Dkt. No. 123 (N.D. Cal. Dec. 19, 2013) (“Motorola”) (attached to
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`Plaintiff’ s opening brief in the above-captioned cases as Exhibit C).
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`II. LEGAL PRINCIPLES
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`The claims of a patent define the invention to which the patentee is entitled the right to
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`exclude. Phillips V. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). Claim terms
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`are given their ordinary and customary meaning to one of ordinary skill in the art at the time of
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`the invention, unless there is clear evidence in the patent’s specification or prosecution history
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`that the patentee intended a different meaning.
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`Id. at 1312-13. Claim construction is informed
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`by the intrinsic evidence: the patents’ specifications and file histories.
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`Id. at 1315-17. Courts
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`may also consider evidence such as dictionary definitions and treatises to aid in determining the
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`ordinary and customary meaning of claim terms.
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`Id. at 1322. Further, “[o]ther claims, asserted
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 6 of 24 Page|D #: 3301
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`and unasserted, can provide additional instruction because ‘terms are normally used consistently
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`throughout the patent.’” SmartPhone Techs. LLC V. Research in Motion Corp., No. 6: l0-CV-74-
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`LED-JDL, 2012 WL 489112, at *2 (E.D. Tex. Feb. 13, 2012) (citing Phillips, 415 F.3d at 1314).
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`“Differences among claims, such as additional limitations in dependent claims, can provide
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`further guidance.” SmartPhone, 2012 WL 489112, at *2.
`
`A court should “avoid the danger of reading limitations fiom the specification into the
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`claim[s].” Phillips, 415 F.3d at 1323. For example, “although the specification often describes
`
`very specific embodiments of the invention, [the Federal Circuit has] repeatedly warned against
`
`confining the claims to those embodiments.” Id. The Federal Circuit has “expressly rejected the
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`contention that if a patent describes only a single embodiment, the claims of the patent must be
`
`construed as being limited to that embodiment.”
`
`Id.
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`This is not only because of the
`
`requirements of Section 112 of the Patent Act, but also because “persons of ordinary skill in the
`
`art rarely would confine their definitions of terms to the exact representations depicted in the
`
`embodiments.” Id. Limitations fiom the specification should only be read into the claims if the
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`patentee “acted as his own lexicographer and imbued the claim terms with a particular meaning
`
`or disavowed or disclaimed scope of coverage, by using words or expressions of manifest
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`exclusion or restriction.” E-Pass Techs., Inc. V. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir.
`
`2003) (citations omitted); Thorner V. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1367
`
`(Fed. Cir. 2012).
`
`Similarly, the prosecution history may not be used to infer the intentional narrowing of a
`
`claim absent the applicant’s clear disavowal of claim coverage. SuperGuide Corp. v. DirecTV
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`Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004) (citations omitted). “To be given effect, such a
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`disclaimer must be made with reasonable clarity and deliberateness.” Id.
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 7 of 24 Page|D #: 3302
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`Guided by these principles of claim construction, this Court directs its attention to the
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`patents-in-suit and the disputed claim terms.
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`III. CONSTRUCTION OF AGREED TERMS
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`The Court hereby adopts the following agreed-upon constructions:
`
`“select[ing]”
`
`Patents / Claims
`’748 patent, claims 6, 8, 19, 21;
`’212 patent, claims 1, 18
`
`Areed Construction
`“choos[ing]”
`
`set of
`a
`“select[ing]
`candidate subcarriers”
`
`’748 patent, claims 6, 8, 19, 21;
`’212 patent, claims 1, 18
`
`“choos[ing] a set of subcarriers
`that
`the subscriber requests for
`77
`USS
`
`“arbitrarily
`order[ing/ed]”
`
`’748 patent, claims 6, 19;
`’212 patent, claims 13, 28
`
`in an order not
`“order[ed/ing]
`known by the base station”
`
`“clusters of subcarriers”
`
`’748 patent, claims 6, ll, 19, 21;
`’212 patent, claims 13, 18, 28
`
`two logical units of
`least
`“at
`subcarriers”
`
`“index indication of a
`
`candidate cluster with
`
`it[s] SINR Value”
`
`’748 patent, claims 6, 19
`
`“SINR Value”
`
`’748 patent, claims 6, 19
`
`chosen
`a
`(ID) of
`“identifier
`candidate cluster of subcarriers
`
`accompanied by its SINR Value”
`
`"Signal-to-Interference-plus-
`Noise Ratio measurement”
`
`€(S 77
`
`’748 patent, claims 6, 9, 19, 22;
`’212 patent, claim 19
`
`"Signal-to-Interference-plus-
`Noise Ratio”
`
`[of/from]
`“subcarriers
`the set of subcarriers
`
`’748 patent, claims 6, 8, 19, 21;
`’212 patent, claims 1, 18
`
`selected by the [first]
`base station”
`
`“subcarriers that the base station
`
`has
`
`chosen fiom the
`
`set of
`
`candidate subcarriers selected by
`the subscriber”
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`“intra-cell
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`traffic
`
`load
`
`’748 patent, claim 11
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`balancing”
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`“balancing cluster usage within a
`cell of a base station”
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`Dkt. No. 66 at Ex. A.
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 8 of 24 PageID #: 3303
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`IV. CONSTRUCTION OF DISPUTED TERMS
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`Plaintiff’ s briefing notes several terms that are the subject of briefing on Defendants’
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`Motion for Summary Judgment of Invalidity Based on Indefiniteness Under 35 U.S.C. § 112
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`(Dkt. No. 81).
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`Specifically,
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`those disputed terms are “each cluster,” “desires to employ,”
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`“desired for use,” and “indication of subcarriers.” See id.; see also Dkt. No. 74 at 11. The Court
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`addresses those terms by separate Report and Recommendation on the motion for summary
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`judgment.
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`The Court therefore turns to the disputed terms submitted by the parties for construction.
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`Plaintiff submits “[t]he disputed terms are found in claims 6, 8, 9, ll, 19, 21 and 22 of the ’748
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`patent and claims 1, 9, ll, 13, 19, 26 and 28 ofthe ’2l2 patent.” Dkt. No. 74 at 6.
`
`A. “subcarrier selection”
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`Plaintiff’ s Proposed Construction
`
`Defendants’ Proposed Construction plain and ordinary meaning; no construction “choosing each subcarrier”
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`necessary
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`Dkt. No. 74 at 7; Dkt. No. 82 at 9. The parties submit that this disputed term appears in claims 6
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`and 8 of the ‘748 patent and claim 1 of the ‘2l2 patent. Dkt. No. 66, Ex. B at l & Ex. C at 1.
`
`The parties have not presented any prior court construction of this disputed term, and the
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`Court finds none.
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`gl 1 The Parties’ Positions
`
`Plaintiff argues “the ordinary meaning of the words adequately expresses what is covered
`
`by the claim and any attempt to further define it would only heighten the potential for jury
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`confiision.” Dkt. No. 74 at 7. Plaintiff urges that Defendants’ proposal “conflicts with the
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`ordinary meaning of selection, which can include a selection of just some items fiom a given set
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 9 of 24 Page|D #: 3304
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`of items.” Id. Plaintiff fixrther argues: “The embodiments of the patents-in-suit clearly support
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`the selection of a subset (not each) (See ’748 patent 3:7-34); thus, it is not necessary that ‘each’
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`subcarrier be selected, even per embodiments in the specification.” Id.
`
`Defendants respond that “[t]he dispute is whether these claims require a subscriber to
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`select each subcarrier with good performance and subsequently group these ‘good’ subcarriers
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`into a set of candidate subcarriers for reporting to the base station.” Dkt. No. 82 at 9.
`
`Defendants argue that “under [Plaintiff’ s] purported construction, a subscriber can select
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`predefined clusters of subcarriers, without regard to whether a selected cluster may include
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`subcarriers that do not have good performance.” Id. Defendants fixrther submit:
`
`While Defendants agree with [Plaintiff] that the Asserted Patents do not require
`that ‘every’ subcarrier be selected (or chosen), the Asserted Patents explain that
`the process of selection involves ‘choosing each subcarrier’ from among the
`available subcarriers.
`If it makes the limitation clearer, Defendants have no
`objection to a claim construction of ‘selectively choosing each subcarrier.’
`
`Id. (footnote omitted; emphasis omitted).
`
`Plaintiff replies that Defendants’ proposal would improperly “prohibit[] a choice of less
`
`than all good subcarriers or a choice that includes some good subcarriers and some ‘less than
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`good’ subcarriers.” Dkt. No. 86 at 1. Plaintiff also argues Defendants’ suggestion of using the
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`word “selectively” would be nonsensical because the parties have agreed to construe
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`“select[ing]” as “choos[ing].” Id. at 2.
`
`At
`
`the September 11, 2014 hearing, Defendants submitted, as alternative proposed
`77
`LC
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`constructions, “choosing individual subcarriers,
`
`selectively choosing individual subcarriers,”
`
`or “choosing some or all
`
`individual subcarriers.”
`
`Plaintiff reiterated that nothing in the
`
`specification requires individual selection of subcarriers.
`
`Plaintiff also argued that all of
`
`Defendants’ alternative proposed constructions are awkward, confilsing, and unnecessary.
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 10 of 24 PageID #: 3305
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`2 Anal sis
`
`Claim 6 of the ‘748 patent is representative and recites (emphasis added):
`
`6. A method for subcarrier selection for a system employing orthogonal
`fiequency division multiple access (OFDMA) comprising:
`a subscriber measuring charmel and interference information for a
`plurality of subcarriers based on pilot symbols received fiom a base station;
`the subscriber selecting a set of candidate subcarriers;
`the subscriber providing feedback information on the set of candidate
`subcarriers to the base station, wherein providing feedback information comprises
`arbitrarily ordering the set of candidate of [sic] subcarriers as clusters of
`subcarriers, and further wherein the feedback information includes an index
`indication of a candidate cluster with its SINR value; and
`the subscriber receiving an indication of subcarriers of the set of
`subcarriers selected by the base station for use by the subscriber.
`
`The specification discloses selecting “good” subcarriers:
`
`For downlink charmels, each subscriber
`first measures
`the charmel and
`interference information for all
`the subcarriers and then selects multiple
`subcarriers with good performance (e.g., a high signal-to-interference plus noise
`ratio (SINR)) and feeds back the information on these candidate subcarriers to the
`base station. The feedback may comprise charmel and interference information
`(e.g., signal-to-interference-plus-noise-ratio information) on all subcarriers or just
`a portion of subcarriers. In case ofproviding information on only a portion of the
`subcarriers, a subscriber may provide a list of subcarriers ordered starting with
`those subcarriers which the subscriber desires to use, usually because their
`performance is good or better than that ofother subcarriers.
`
`the base station further
`Upon receiving the information fiom the subscriber,
`selects the subcarriers among the candidates, utilizing additional information
`available at the base station, e.g., the traffic load information on each subcarrier,
`amount of traffic requests queued at the base station for each frequency band,
`whether frequency bands are overused, and/or how long a subscriber has been
`waiting to send information.
`In one embodiment,
`the subcarrier
`loading
`information of neighboring cells can also be exchanged between base stations.
`The base stations can use this information in subcarrier allocation to reduce inter-
`
`cell interference.
`
`‘748 patent, 3:7-34 (emphasis added).
`
`On balance, Defendants have failed to demonstrate any requirement that a subscriber
`
`must “select each subcarrier with good performance and subsequently group these ‘good’
`
`10
`
`

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`Case 6:13—cv—O0444—MHS—CMC Document 90 Filed 09/19/14 Page 11 of 24 Page|D #: 3306
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`subcarriers into a set of candidate subcarriers for reporting to the base station.” Dkt. No. 82 at 9.
`
`Likewise, Defendants have failed to justify excluding use of “predefined clusters of subcarriers.”
`
`Id. To the contrary, the above-quoted disclosure of “select[ing] multiple subcarriers with good
`
`performance” is consistent with selecting groups of subcarriers rather than necessarily individual
`
`subcarriers.
`
`See ‘748 patent, 3:9. Defendants’ proposed construction is therefore hereby
`
`expressly rejected.
`
`The parties’ dispute having thus been resolved, the disputed term need not be construed
`
`any fiirther. See US. Surgical Corp. V. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997)
`
`(“Claim construction is a matter of resolution of disputed meanings and technical scope, to
`
`clarify and when necessary to explain what the patentee covered by the claims, for use in the
`
`determination of infringement.
`
`It is not an obligatory exercise in redundancy.”); see also 02
`
`Micro Int’l Ltd. V. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008)
`
`(“[D]istrict courts are not (and should not be) required to construe every limitation present in a
`
`patent’s asserted claims.”); Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed.
`
`Cir. 2010) (“Unlike 02 Micro, where the court failed to resolve the parties’ quarrel, the district
`
`court rejected Defendants’ construction”).
`
`The Court therefore hereby construes “subcarrier selection” to have its plain and
`
`ordinary meaning.
`
`B. “pilot symbols”
`
`Plaintiff’ s Proposed Construction
`
`“symbols, sequences, or signals known to both
`the base station and subscriber”
`
`subcarriers”
`
`Defendants’ Proposed Construction
`C
`
`‘symbols, sequences, or signals known to both
`the base station and subscriber, which are
`transmitted by the base station on all allocable
`
`11
`
`

`
`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 12 of 24 PageID #: 3307
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`Dkt. No. 74 at 7; Dkt. No. 82 at 11. The parties submit that this disputed term appears in
`
`claims 6, 8, 19, and 21 of the ‘748 patent and claims 1, 18, and 19 of the ‘212 patent. Dkt.
`
`No. 66, Ex. B at 1 & Ex. C at 5.
`
`In AT&T as well as in Motorola, the parties agreed to substantially the same construction
`
`that Plaintiff is proposing here. Dkt. No. 74 at 8; see AT&T, Dkt. No. 180 at 6 (“symbols,
`
`sequences, or signals known to both base station and subscriber”); see also Motorola, Dkt.
`
`No. 105, 10/8/2013 Joint Claim Construction and Prehearing Statement Pursuant to Patent
`
`L.R. 4-3 at 2 (same).
`
`(1) The Parties’ Positions
`
`Plaintiff argues “Defendants’ construction attempts to limit the scope of the claim to an
`
`embodiment of the patents-in-suit” despite the absence of any “clear indication in the intrinsic
`
`record that the patentee intended the claims to be so limited.” Dkt. No. 74 at 8. Plaintiff also
`
`argues claim 6 of the ‘212 patent “recites a more limited type of pilot symbol when intended.”
`
`Id.
`
`Defendants respond that “merely because others have agreed with [Plaintiff] on a
`
`construction is no basis for this Court to not determine an appropriate construction here.” Dkt.
`
`No. 82 at 11. Defendants argue the disputed term does not have a settled meaning in the art and
`
`that “every description of ‘pilot symbol’” in the specification confirms that “each pilot symbol”
`
`“covers the entire OFDM frequency bandwidth.” Id. at 12-13 (citing ‘748 patent, 5:26-36, 7:31-
`
`32, 7:33-35, 7:67-8:2, 8:8-11 & 9:6-9). Finally, Defendants argue that although Plaintiff has
`
`cited claim 6 of the ‘212 patent, the doctrine of claim differentiation is inapplicable because
`
`“claim 6 differs in scope from Defendants’ proposed construction” and, moreover, claim
`
`differentiation carmot override how the disputed term is used in the specification. Id. at 14.
`
`12
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 13 of 24 PageID #: 3308
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`Plaintiff replies by reiterating its opening arguments and by urging that “contrary to
`
`Defendants’ argument, the specification does not disclose just one embodiment of the invention
`
`wherein the pilot signals are ‘on all allocable subcarriers’ or covering ‘the entire OFDM
`
`fiequency bandwidth.”’ Dkt. No. 86 at 4. Plaintiff also argues claim differentiation as to
`
`claim 17 of the ‘748 patent. Id. at 5.
`
`At the September 11, 2014 hearing, Defendants reiterated the multiple disclosures, in the
`
`specification, of pilot symbols that cover the entire OFDMA frequency bandwidth.
`
`In addition
`
`to the case law cited in Defendants’ responsive claim construction brief, Defendants cited
`
`additional case law such as Irdeto Access, Inc. V. Echostar Satellite Corp., 383 F.3d 1295,
`
`1300-01 (Fed. Cir. 2004) (finding that “the specification consistently uses the term ‘group’ to
`
`refer to a subset of all subscribers”) (emphasis added).
`
`2 Anal sis
`
`Claim 1 of the ‘2l2 patent is representative and recites (emphasis added):
`
`1. A method for subcarrier selection for a system employing orthogonal
`fiequency division multiple access (OFDMA) comprising:
`a subscriber unit measuring charmel and interference information for a
`plurality of subcarriers based on pilot symbols received fiom a base station;
`the subscriber unit selecting a set of candidate subcarriers;
`the subscriber unit providing feedback information on the set of candidate
`subcarriers to the base station;
`the subscriber unit receiving an indication of subcarriers of the set of
`subcarriers selected by the base station for use by the subscriber unit; and
`the subscriber unit submitting updated feedback information, after being
`allocated the set of subcarriers to be allocated an updated set of subcarriers, and
`thereafter the subscriber unit receiving another indication of the updated set of
`subcarriers.
`
`Plaintiff has argued claim differentiation as to claim 6 of the ‘2l2 patent, which depends
`
`fiom claim 1 and which recites:
`
`6. The method defined in claim 1 wherein the pilot symbols occupy an entire
`OFDM frequency bandwidth.
`
`13
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`

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`Case 6:13—cv—O0444—MHS—CMC Document 90 Filed 09/19/14 Page 14 of 24 Page|D #: 3309
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`Likewise, claim 17 of the ‘748 patent depends from claim 14, and those claims recite
`
`(emphasis added):
`
`14. An apparatus comprising:
`a plurality of subscribers in a first cell to generate feedback information
`indicating clusters of subcarriers desired for use by the plurality of subscribers;
`and
`
`a first base station in the first cell,
`the first base station to allocate
`OFDMA subcarriers in clusters to the plurality of subscribers;
`each of a plurality of subscribers to measure charmel and interference
`information for the plurality of subcarriers based on pilot symbols received fiom
`the first base station, wherein at least one subscriber of the plurality of subscribers
`select a set of candidate subcarriers from the plurality of subcarriers based, at least
`in part, on SINR of the cluster and a difference between measured power
`corresponding to each cluster during pilot periods and measured power during
`data periods, and the one subscriber to provide feedback information on the set of
`candidate subcarriers to the base station and to receive an indication of subcarriers
`
`fiom the set of subcarriers selected by the first base station for use by the one
`subscriber.
`
`***
`
`17. The apparatus defined in claim 14 wherein the pilot symbols occupy an entire
`OFDM frequency bandwidth.
`
`The doctrine of claim differentiation thus weighs against Defendants’ proposed
`
`construction. See, e.g., Nazomi Commc’ns, Inc. V. Arm Holdings, PLC, 403 F.3d 1364, 1370
`
`(Fed. Cir. 2005) (“The concept of claim differentiation normally means that limitations stated in
`
`dependent claims are not to be read into the independent claim fiom which they depend.”)
`
`(citations and internal quotation marks omitted).
`
`Defendants nonetheless highlight that the specification discloses “fiill-bandwidth” pilot
`
`symbols:
`
`Referring to FIG. 1B, each base station periodically broadcasts pilot OFDM
`symbols to every subscriber within its cell (or sector) (processing block 101). The
`pilot symbols, often referred to as a sounding sequence or signal, are known to
`both the base station and the subscribers.
`In one embodiment, each pilot symbol
`covers the entire OFDM fiequency bandwidth.
`The pilot symbols may be
`
`14
`
`

`
`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 15 of 24 Page|D #: 3310
`
`different for different cells (or sectors). The pilot symbols can serve multiple
`purposes: time and frequency synchronization, charmel estimation and signal-to-
`interference/noise (SINR) ratio measurement for cluster allocation.
`
`‘748 patent, 5:26-36 (emphasis added).2
`
`In one embodiment, each base station transmits pilot symbols simultaneously, and
`each pilot symbol occupies the entire OFDMfrequency bandwidth, as shown in
`FIGS. 2A-C. Referring to FIG. 2A-C, pilot symbols 201 are shown traversing the
`entire OFDM fiequency bandwidth for cells A, B and C, respectively.
`
`Id. at 7:31-35 (emphasis added).
`
`Pilot symbols serve an additional purpose in determining interference among the
`cells. Since the pilots of multiple cells are broadcast at the same time, they will
`interfere with each other (because they occupy the entire frequency band). This
`collision of pilot symbols may be used to determine the amount of interference as
`a worst case scenario. Therefore, in one embodiment, the above SINR estimation
`using this method is conservative in that the measured interference level is the
`worst-case scenario, assuming that all the interference sources are on. Thus, the
`structure ofpilot symbols is such that it occupies the entire frequency band and
`causes collisions among different cells for use in detecting the worst case SINR in
`packet transmission systems.
`
`Id. at 7:66-8:11 (emphasis added).
`
`The charmel/interference estimation by processing block 301 is well-known in the
`art by monitoring the interference that is generated due to full-bandwidth pilot
`symbols being simultaneously broadcast in multiple cells.
`
`Id. at 9:6-9 (emphasis added).
`
`2 This disclosure of “time and fiequency synchronization” as a potential purpose of pilot symbols
`is quoted (but not discussed) in Defendants’ response brief. Dkt. No. 82 at 12. At the
`September 11, 2014 hearing, upon inquiry regarding whether this disclosure weighs for or
`against requiring pilot symbols to cover all allocable subcarriers, Defendants requested
`permission to file a supplemental brief Plaintiff responded that this disclosure is fiirther
`evidence weighing against requiring full-bandwidth pilot symbols. The Court granted
`Defendants’ request and stated that both sides could file a supplemental brief regarding this
`disclosure, if desired, no later than September 16, 2014. Defendants filed a supplemental letter
`brief (Dkt. No. 96-1). In particular, Defendants argue that the relevant disclosure “explains that
`pilot symbols which cover the entire OFDMfrequency bandwidth can be used for a number of
`purposes, including e.g., time and fiequency synchronization.” Dkt. No. 96-1 at p. 2 of 83
`(emphasis in original). Defendants also submit that “[s]ynchronization of all subcarriers ensures
`that all subcarriers remain orthogonal.” Id. at p. 3 of 83 (emphasis added).
`
`15
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`

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`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 16 of 24 PageID #: 3311
`
`On one hand, “claims must be read in view of the specification, of which they are a part.”
`
`Phillips, 415 F.3d at 1315 (citation and internal quotation marks omitted); see Netword, LLC V.
`
`Centraal Corp., 242 F.3d 1347, 1352 (Fed. Cir. 2001) (“Although the specification need not
`
`present every embodiment or permutation of the invention and the claims are not limited to the
`
`preferred embodiment of the invention, neither do the claims enlarge what is patented beyond
`
`what the inventor has described as the invention.”); see also Retractable Techs., Inc. V. Becton,
`
`Dickinson & Co., 653 F.3d 1296, 1305 (Fed. Cir. 2011) (“In reviewing the intrinsic record to
`
`construe the claims, we strive to capture the scope of the actual invention, rather than strictly
`
`limit the scope of claims to disclosed embodiments or allow the claim language to become
`
`divorced fiom what the specification conveys is the invention”); Virnet)C Inc. V. Cisco Sys., Inc.,
`
`No. 2013-1489, --- F.3d ----, 2014 WL 4548722, at *4-*5 (Fed. Cir. Sept. 16, 2014) (noting that
`
`the patentee “has not identified even a single embodiment that provides data security but not
`
`anonymity” and that “[t]he fact
`
`that anonymity is repeatedly and consistently used to
`
`characterize the invention strongly suggests that it should be read as part of the claim”) (citation
`
`and internal quotation marks omitted).
`
`On the other hand, “[e]ven when the specification describes only a single embodiment,
`
`the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear
`
`intention to limit
`
`the claim scope using ‘words or expressions of manifest exclusion or
`
`restriction.’” Liebel-Flarsheim Co. V. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (quoting
`
`Teleflex, Inc. V. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)); see Electro Med
`
`Sys., S.A. V. Cooper Life Scis., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994) (“[P]articular
`
`embodiments appearing in a specification will not be read into the claims when the claim
`
`language is broader than such embodiments”).
`
`16
`
`

`
`Case 6:13—cv—00444—MHS—CMC Document 90 Filed 09/19/14 Page 17 of 24 PageID #: 3312
`
`Further, the disclosure of “fiill-bandwidth pilot symbols” weighs in favor of finding that
`
`the term “pilot symbols,” by itself, does not include the limitation “fiill-bandwidth.” ‘748 patent,
`
`9:6-9 (emphasis added); see 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.”).
`
`On balance, particularly in light of claim differentiation, discussed above, Defendants’
`
`proposed construction would improperly import a particular
`
`feature from a preferred
`
`embodiment into the claims. See Li