TQ Delta Exhibit 2014
`
`Cisco Systems, Inc. v. TQ Delta, LLC
`
`IPR2016-01466
`
`

`

`The ‘759 patent is directed to a method for providing asymmetric modulation in wireless
`
`communications systems. The ‘323 patent is directed towards a method for conserving powerin
`
`communications systems.
`
`The abstract of the ‘759 patentstates:
`
`On embodiment of the system and method provides asymmetric adaptive
`modulation which allows uplink and downlink subframes of data to be transmitted
`between a base station and a CPE with different modulation schemes,
`thus
`increasing the efficiency of downlink transmissions while maintaining the
`stability of uplink transmissions. In systems with multiple CPEs, each CPE and
`base station pair can independently select their uplink and downlink modulation
`techniques. The system and method are also adaptive in that they adjust the
`modulation schemes based on, for example, signal to noise ratio measurements or
`bit error rate measurements.
`
`Claim 1 of the ‘759 patent is reproduced below:
`
`A wireless communication system for determining a plurality of uplink
`modulation schemesand a plurality of downlink modulation schemes for use in a
`wireless communication system including a base station and a plurality of
`customer premises equipment (CPE), where each of the plurality of uplink and
`downlink modulation schemes used by. each of the plurality of CPE can be
`asymmetric, such that the uplink modulation scheme maybe different than the
`downlink modulation scheme, the system comprising:
`
`a plurality of CPE, each including a first modem configured to measure a
`first link quality based on received downlink data;
`
`a base station having a second modem configured to measure a second
`link quality for each of the plurality of CPE based on received uplink data:
`
`a first processor configured to receive the first link quality and determine a
`downlink modulation scheme for each of the plurality of CPE; and
`
`a second processor configured to receive the second link quality and
`determine an uplink modulation scheme for each ofthe plurality of CPE.
`
`The abstract of the ‘323 patentstates:
`
`Methods and apparatus for conserving power in terminal units that transmit and
`receive modulated data over a communications loop that is shared with voiceband
`
`

`

`telephone equipment are disclosed. The methods include monitoring the loop to
`detect a shut-down condition and reducing power consumption of certain of the
`electronic circuits in the terminal unit upon detection of a shut-down condition.
`The methods also include monitoring the loop with a monitoring circuit to detect
`a resume signal outside the voiceband frequency range on the loop and restoring
`power
`to the electronic circuits when the resume signal
`is detected. The
`apparatuses include a modulated data transmitting and receiving unit having a
`connector for coupling the unit to a communications loop, circuitry to transmit
`and receive a modulated data signal in a frequency range above voiceband, and
`circuitry to detect a resumesignal in the frequency range above voiceband and
`then to initiate a power up sequencefor the transmit and receive circuitry.
`
`Claim 1 of the ‘323 patent is reproduced below:
`
`A method of conserving powerin a terminal unit having a transmitter and receiver
`for modulated data communication over a communications loop, comprising:
`
`monitoring the loop to detect a shut-down condition;
`
`reducing power consumption of demodulation circuitry in the terminal
`unit upon detection of a shut-downcondition;
`
`monitoring the loop with a monitoring circuit to detect a resume signal
`that
`is not a modulated data signal and that
`is outside the voiceband
`frequencyrange on the loop; and
`
`activating demodulation circuitry when the resumesignal is detected.
`
`Tl.
`
`GENERAL PRINCIPLES GOVERNING CLAIM CONSTRUCTION
`
`“A claim in a patent provides the metes and boundsof the right which the patent confers
`
`on the patentee to exclude others from making, using or selling the protected invention.” Burke,
`
`Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999). Claim construction
`
`is an issue of law for the court to decide. Markman v. Westview Instruments, Inc., 52 F.3d 967,
`
`970-71 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996).
`
`To ascertain the meaning of claims, the Court looks to three primary sources: the claims,
`
`the specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must
`
`Wo
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`

`

`contain a written description ofthe invention that enables one of ordinaryskill in the art to make
`
`and use the invention. Jd. A patent’s claims must be read in viewofthe specification, of which
`
`they are a part.
`
`Jd. For claim construction purposes,
`
`the description mayact as a sort of
`
`dictionary, which explains the invention and may define terms used in the claims.
`
`Jd.
`
`“One
`
`purpose for examining the specification is to determine if the patentee has limited the scope of
`
`the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
`
`Nonetheless, it is the function of the claims, not the specification, to set forth the limits of
`
`the patentee’s invention. Otherwise, there would be no need for claims. SRI Jnt’l v. Matsushita
`
`Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
`
`lexicographer, but any special definition given to a word must be clearly set forth in the
`
`specification.
`
`Jnfellicall,
`
`Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992).
`
`Although the specification may indicate that certain embodiments are preferred, particular
`
`embodiments appearing in the specification will not be read into the claims when the claim
`
`language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
`
`34 F.3d 1048, 1054 (Fed. Cir. 1994).
`
`This Court’s claim construction decision must be informed by the Federal Circuit’s
`
`decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc).
`
`In Phillips,
`
`the court set forth several guideposts that courts should follow when construing claims.
`
`In
`
`particular, the court reiterated that “the claims of a patent define the invention to which the
`
`patentee is entitled the right
`
`to exclude.”
`
`415 F.3d at 1312 (emphasis added)
`
`(quoting
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir.
`
`2004)). To that end, the words used in a claim are generally given their ordinary and customary
`
`

`

`meaning. Jd. The ordinary and customary meaning of a claim term“is the meaningthat the term
`
`would have to a person of ordinaryskill in the art in questionat the time of the invention,i.e., as
`
`of the effective filing date of the patent application.” Jd. at 1313. This principle of patent law
`
`flows naturally from the recognition that inventors are usually persons who are skilled in the
`
`field of the invention and that patents are addressed to and intended to be read byothers skilled
`
`in the particularart. Id.
`
`The primacy of claim terms notwithstanding, Phillips made clear that “the person of
`
`ordinaryskill in the art is deemed to read the claim term not onlyin the contextof the particular
`
`claim in which the disputed term appears, but in the context of the entire patent, including the
`
`specification.” Jd. Although the claims themselves may provide guidance as to the meaning of
`
`particular terms, those terms are part of “a fully integrated written instrument.” Jd. at 1315,
`
`quoting Markman, 52 F.3d at 978. Thus, the Phillips court emphasized the specification as being
`
`the primarybasis for construing the claims.
`
`Jd. at 1314-17. As the Supreme Court stated long
`
`ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive
`
`portions of the specification to aid in solving the doubt or in ascertaining the true intent and
`
`meaning of the language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878).
`
`addressing the role of the specification,
`
`the Phillips court quoted with approval
`
`its earlier
`
`observations from Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
`
`1998):
`
`the interpretation to be given a term can only be determined and
`Ultimately,
`confirmed with a full understanding of what the inventors actually invented and
`intended to envelop with the claim. The construction that stays true to the claim
`language and most naturally aligns with the patent’s description of the invention
`will be, in the end, the correct construction.
`
`Nn
`
`

`

`Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important
`
`role the
`
`specification plays in the claim construction process.
`
`The prosecution history also continues to play an important role in claim interpretation.
`
`Like the specification, the prosecution history helps to demonstrate howthe inventor and the
`
`PTO understood the patent.
`
`Jd. at 1317. Because the file history, however, “represents an
`
`ongoing negotiation between the PTO and the applicant,” it may lack the clarity of the
`
`specification and thus be less useful in claim construction proceedings.
`
`Jd. Nevertheless, the
`
`prosecution historyis intrinsic evidence that is relevant to the determination of howthe inventor
`
`understood the invention and whether the inventor limited the invention during prosecution by
`
`narrowingthe scope of the claims. Jd.
`
`Phillips rejected any claim construction approach that sacrificed the intrinsic record in
`
`favorof extrinsic evidence, such as dictionarydefinitions or expert testimony. The en banc court
`
`condemnedthe suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
`
`(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
`
`dictionaries or otherwise) before resorting to the specification for certain limited purposes.
`
`Phillips, 415 F.3d at 1319-24. The approach suggested by Texas Digital—the assignment of a
`
`limited role to the specification—was rejected as inconsistent with decisions holding the
`
`specification to be the best guide to the meaning of a disputed term.
`
`Jd. at 1320-21. According
`
`to Phillips, reliance on dictionarydefinitions at the expense of the specification had the effect of
`
`“focus[ing] the inquiry on the abstract meaning of words rather than on the meaning of claim
`
`terms within the context of the patent.” Jd. at 1321. Phillips emphasized that the patent system
`
`is based on the proposition that the claims cover onlythe invented subject matter.
`
`Jd. Whatis
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`

`

`described in the claims flows from the statutory requirement imposed on the patentee to describe
`
`and particularly claim what he or she has invented.
`
`Jd. The definitions found in dictionaries,
`
`however, often flow from the editors’ objective of assembling all of the possible definitions for a
`
`word. Jd. at 1321-22.
`
`Phillips does not preclude all uses of dictionaries in claim construction proceedings.
`
`Instead, the court assigned dictionaries a role subordinate to the intrinsic record.
`
`In doing so, the
`
`court emphasized that claim construction issues are not resolved by any magic formula. The
`
`court did not impose anyparticular sequence of steps for a court to follow when it considers
`
`disputed claim language.
`
`Jd. at 1323-25. Rather, Phillips held that a court must attach the
`
`appropriate weight to the intrinsic sources offered in support of a proposed claim construction,
`
`bearing in mind the general rule that the claims measure the scope of the patent grant.
`
`IV.
`
`AGREED CONSTRUCTIONS
`
`Based upon the joint submission of claim construction charts and subsequent arguments
`
`in briefing and at the hearing, the following terms of the patent have been agreed to by the
`
`parties and are therefore adopted bythe Court:
`
`
`
`Claim Termsin ‘759 Patent
`Agreed Construction
`
`“downlink modulation scheme”|“a modulation scheme for use in a downlink”
`
`“a modulation schemefor use in an uplink”
`“uplink modulation scheme”
`“downlink”
`“a communication link froma base station to
`a CPE”
`“a communication link from a CPE to a base
`station”
`
`
`
`Claim Termsin ‘323 Patent
`Agreed Construction
`“communications loop” / “loop”|“wire that exists between units”
`“not a modulated data signal”|“not a signal conveying data through
`variation of amplitude, frequency, and/or
`phase”
`
`“uplink”
`
`
`
`
`
`

`

`V.
`
`TERMSIN DISPUTE OF THE ‘759 PATENT
`
`
`
`“base station”
`1.
`
`
`Claim Term/Claim Language
`
`“base station”
`
`[claims 1, 3-4, 10-12, 15-16, 19,
`24-26]
`
`“1. A wireless communication
`system .. . comprising:
`
`a base station having a second
`modem configured to measure a
`second link quality for each of the
`plurality of CPE based on received
`uplink data... .”
`
`
`
`
`
`Defendants’ Proposed
`Construction
`“fixed station in a wireless
`communication system that
`relays data between a fixed
`network infrastructure and
`at least one CPE”
`
`Plaintiff's Proposed
`Construction
`“equipmentin a wireless
`communication system that
`transmits data to a CPE”
`
`Plaintiff also offered a
`revised construction at the
`hearing which reads: “a
`station in a wireless
`communication system that
`facilitates communication
`between a fixed network
`infrastructure and at least
`one CPE”
`
`
`
`
`The Court construes “base station” as “equipment in a wireless communication system
`
`that transmits data to and/or receives data from a CPE.”
`
`A.
`
`Parties’ Construction Arguments
`
`Plaintiffs original proposed construction seeks “base station” to be construed as
`
`“equipment in a wireless communication system that transmits data to a CPE.” Plaintiff argues
`
`there is Janguage in the specification that supports the “transmits” language. See ‘759 patent,
`
`2:46-47, At the hearing Plaintiff also proposed a revised construction that reads “a station in a
`
`wireless communication system that
`
`facilitates communication between a fixed network
`
`infrastructure and at least one CPE.” Plaintiff provided no briefing on the revised construction,
`
`but Plaintiff argued at the hearing that Plaintiff's revised construction is an attempt to bring
`
`Plaintiff's construction closer to Defendants’ proposed construction in order to focus the Court
`
`on the real disputes between the parties.
`
`

`

`Defendants seek a construction of “base station” as a “fixed station in a wireless
`
`communication system that relays data between a fixed network infrastructure and at least one
`
`CPE.” Defendants ask the Court to require that the base station be “fixed.” For support,
`
`Defendants cite to technical dictionaries to show one of ordinaryskill in the art would have
`
`known that base stations were fixed stations at
`
`the time of the filing of the ‘759 patent.
`
`Defendants also point out that the ‘759 patent incorporates U.S. Patent No. 6,016,311 (filed Nov.
`
`19, 1997) (the ‘311 patent) by reference, and the ‘311 patent shows base stations in fixed
`
`locations. See, e.g., ‘311 patent, Figure 4. Defendants’ construction additionally requires the
`
`fixed station to “relay” data between a fixed network infrastructure and at
`
`least one CPE.
`
`Defendants’ argumentrelies on the figures and the specification of the ‘311 patent that showthe
`
`base station communicating with both the CPEs on one end and network infrastructure on the
`
`other end.
`
`Id.
`
`B.
`
`Analysis
`
`The Court construes the term “base station” as “equipment in a wireless communication
`
`system that transmits data to and/or receives data from a CPE.” While the Court mostly agrees
`
`with Plaintiffs original construction that reads “equipment in a wireless communication system
`
`that transmits data to a CPE,” the Court believes it is incomplete because it only requires that the
`
`base station transmit data to a CPE. Plaintiff supports its construction with the ‘759 patent
`
`specification that describes a method for use in a wireless communication system involving “data
`
`transmitted by the base station and subsequently received by the CPE.”
`
`‘759 patent, 2:46-47.
`
`But the base station does not only transmit data to the CPEs, it also receives data from the CPEs.
`
`See, e.g., ‘759 patent, 2:19-22 (“a base station having a second modem configured to measure a
`
`

`

`second link quality for each of the plurality of CPE based on received uplink data’): ‘759 patent,
`
`2:38-39 (“data transmitted by a CPE and received bya base station”). Therefore, the Court adds
`
`the “receives” language to Plaintiff's construction.
`
`The Court’s construction is strongly
`
`grounded in the intrinsic record. See, e.g., ‘759 patent, 2:52-55 (“receiving a request for the
`
`second downlink modulation schemeat the base station, transmitting a third frame of data by the
`
`base station to the CPE”); ‘759 patent, 3:38-40 (“a system where three CPEs .
`
`.
`
`. are receiving
`
`and transmitting data with the base station”); ‘759 patent, 7:27-29 (“The downlink subframe 302
`
`is used by the base station 102 to transmit information to the plurality of CPEs.”). The Court
`
`adds the qualification “and/or” to reflect the fact that the specification does not require the base
`
`station to both transmit and receive at all . times, as in some instances, for example,
`
`the
`
`specification only discusses the base station transmitting data to the CPEs. See ‘759 patent,
`
`7:27-29 (“The downlink subframe 302 is used by the base station 102 to transmit information to
`
`the plurality of CPEs.”).
`Defendants’ construction is ssratilennatie because it imposes an additional limitation that
`
`the base station be fixed.
`
`“[U]nless required by the specification,
`
`limitations that do not
`
`oc
`
`otherwise appear in the claims should not be imported into the claims.” N. Am. Container, Inc.
`
`v. Plastipak Packaging, Inc., 415 F.3d 1335, 1348 (Fed. Cir. 2005). The Court concludes that
`
`the ‘759 patent never limits the base station to a fixed base station, and to the extent Defendants
`
`are arguing that base stations are fixed under the ordinary and customary meaningof that term,
`
`the Court disagrees. Nowhere in the ‘759 patent does the inventor limit the base station to a
`
`fixed base station. Defendants point out the ‘311 patent that is incorporated by reference in the
`
`‘759 patent, but the ‘759 patent states that the ‘311 patent is merely “[o]ne exemplary broadband
`
`10
`
`

`

`wireless communications system.”
`
`‘759 patent, 3:29-34.
`
`So the ‘311 patent
`
`illustrates a
`
`preferred embodiment at best, and it is incorrect for the Court to read in a limitation from a
`
`preferred embodiment. Phillips, 415 F.3d at 1323 (“although the specification often describes
`very specific embodiments of the invention, we have repeatedly warned against confining the
`
`claims to those embodiments”).
`
`In addition, while the ‘311 patent clearly showsbase stations
`
`that are fixed, the ‘311 patent never explicitly limits or defines base stations as being fixed.
`
`Finally, as Plaintiff points out, one of ordinaryskill in the art would have knownat the time the
`
`‘759 patent wasfiled that having mobile base stations was possible. See, e.g., European Patent
`
`0936829A2 (filed Aug. 31, 1998) (describing “mobile base stations”); Patent Cooperation Treaty
`
`(PCT) WO 00/36858 (filed Nov. 30, 1999) (describing “mobile base stations’). Thus, contrary
`
`to Defendants’ argument, the ordinary and customary meaning ofbasestation at the time of the
`
`filing of the ‘759 patent did not require the basestations be fixed.
`
`The Court also disagrees with Defendants’ construction as it requires the base station to.
`
`“relay[] data between a fixed network infrastructure and at
`
`least one CPE.” The “relay”
`
`language does not appear anywhere in the “759 patent, and it is unclear what exactly it means to
`
`“relay.”
`
`In any event,
`
`the relationship between the base station and the fixed network
`
`infrastructure is not the focus of this invention. The Court “cannot look at the ordinary meaning
`
`ofaterm...inavacuum... [r]ather, we must look at the ordinary meaning in the context ofthe
`
`written description and the prosecution history.” Medrad, Inc. v. MRI Devices Corp., 401 F.3d
`1319 (Fed. Cir. 2005) (internal quotations eitied), The patent’s written description onlybriefly
`
`mentions the fixed network infrastructure—merely to note its existence—when describing the
`
`prior art. See ‘759 patent, 1:13-23 (“A wireless communication system facilitates two-way
`
`

`

`communication between a plurality of subscriber radio stations or subscriber units (fixed and
`
`portable) and a fixed network infrastructure...
`
`.
`
`The key objective of these wireless
`
`communication systems is to provide communication channels on demand betweena plurality of
`
`subscriber units and their respective base stations in order to connect a subscriber unit user with
`
`the fixed network infrastructure.”). The patentee’s invention, as described in the patent, clearly
`
`pertains to the relationship between the base station and the CPEsand not anyrelationship with
`
`fixed network infrastructure. See, e.g., ‘759 patent, FIG.
`
`1 (showing the exemplary wireless
`
`communication system that only includes the base station and the CPEs); ‘759 patent, FIGs. 6a
`
`and 6b (describing the invention and focusing onlyon the relationship between the base station
`
`and the CPE). Therefore, it is not necessary to include the relationship between the base station
`
`and the fixed network infrastructure because it
`
`is not a key part of the invention and
`
`consequentlyit will not be helpful to the jury.
`
`Finally, Plaintiff offered a revised construction at the hearing, but Plaintiff's revised
`
`construction suffers the same flaws as Defendants’ proposed construction. Plaintiff's revised
`
`construction uses the language “facilitates,” yet
`
`there is not sufficient grounding in the
`
`specification for that
`
`language as there is for the “transmits and receives” language. The
`
`“facilitate” language is only used when describing the prior art
`
`in the beginning of the
`
`specification.
`
`See ‘759 patent, 1:45-47 (“These broadband networks facilitate two-way
`
`communication between a base station and a plurality of fixed subscriber units.”). But as noted
`
`above, the “transmits and receives” language is located throughout the specification and the
`
`claims, so that language is better grounded in the intrinsic record.
`
`In addition, as mentioned
`
`when discussing Defendants’ proposed construction,
`
`the Court does not find it necessary to
`
`

`

`mention the relationship with the fixed network infrastructure because the present invention
`
`concerns the relationship between the base station and the CPEs. Therefore, as noted above, the
`
`Court construes the term “base station” as “equipment in a wireless communication system that
`
`transmits data to and/or receives data from a CPE.”
`
`De
`
`“CPE”(customer premises equipment)
`
`
`
`
`
`Defendants’ Proposed
`Plaintiff's Proposed
`:
`:
`Claim Term/Claim Language
`repose
`oneness
`ETOP
`Construction
`Construction
`“CPE”
`“equipmentin a wireless
`“equipmentinstalled at a
`[claims 1-3, 10-11, 15-16, 19, 24- communication system that|customer premisesthat
`
`27]
`transmits data to a base
`relays data between a base
`~
`station”
`station and end users”
`“1, A wireless communication
`system .. . comprising:
`
`Plaintiff also offered a
`revised construction at the
`hearing whichreads:
`;
`“equipmentin a wireless
`a base station having a second
`communication system that
`modem configured to measure a
`secondlink quality for each of the|facilitates communication
`plurality of CPE based on received|between a base station and
`uplink data...”
`at least one end user”
`
`The Court construes “CPE” (or customer premises equipment) as “customer side
`
`
`
`equipment in a wireless communication system that transmits data to and/or receives data from a
`
`base station.” This construction is similar to the construction of base station, as the base station
`
`and the CPE arerelated.
`
`A.
`
`Parties’ Construction Arguments
`
`Plaintiff's original proposed construction reads “equipment in a wireless communication
`
`system that transmits data to a base station.” Plaintiff's rationale for its original construction of
`
`“CPE” is essentially the same asits rationale for its construction of “base station.” Plaintiff's
`
`

`

`revised proposed construction reads “equipment
`
`in a wireless communication system that
`
`facilitates communication between a base station and at least one end user.” Plaintiff's revised
`
`construction is similar to Plaintiff's revised construction of “base station” as well, and Plaintiff
`provides essentially the — support for the construction of “CPE” as Plaintiff did for “base
`
`station.”
`
`Defendants seek a construction that reads “equipment installed at a customer premises
`
`that relays data between a base station and end users.” Defendants first argue that “CPE” (or
`
`customer premises equipiment) must be installed at a customer premises.
`
`For support,
`
`Defendants first provide technical dictionary definitions that show oneofordinary skill in at the
`
`art at the time of filing would have knowthe CPE mustbeinstalled at a customer premises. As
`
`with Defendants’ argument
`
`for “base station,” Defendants also argue the
`
`‘311 patent
`
`(incorporated by reference in the patent-in-suit) explicitly shows the CPEbeing installed at the
`
`customer premises. See ‘311 patent, Figure 7. Defendantsalso ask the Court to construe CPE as
`
`requiring the CPE to “relay[] data between a base station and end users.” Defendants’ argument
`
`here cites to the specification whereit states that the CPE is coupled to end users in addition to
`
`the base station. See, e.g., ‘759 patent, 4:13-14 (“Each CPEis further coupled to a plurality of
`
`end users... .”).
`
`B.
`
`Analysis
`
`The Court construes “CPE” as “customer side equipment in a wireless communication
`
`system that transmits data to and/or receives data from a base station.” As with “base station,”
`
`the Court primarily agrees with Plaintiff's original construction, but the Court has made changes.
`
`For the same reasons as the Court’s construction of “base station,” the Court adds the “receives”
`
`14
`
`

`

`language.
`
`Furthermore,
`
`the Court adds the language “customer side” to the beginning of
`
`Plaintiff's original construction. The Court concludes that merely stating “equipment” is not
`
`sufficient because it would fail to give effect to the “customer premises” language in the actual
`claim term.
`|
`
`However, the Court disagrees with Defendants that the equipment mustbe installed at a
`
`customer premises. While the term does plainly read customer “premises” equipment,
`
`the
`
`specification shows that the equipment need not be installed at the customer premises. The
`
`specification never limits the CPEs to being installed at the customer’s premises.
`
`Indeed, the
`
`specification mentions “fixed and portable” subscriber units and the specification also discusses
`
`“mobile cellular telephone systems,” which would clearly not be installed at
`
`the customer
`
`premises. See ‘759 patent, 1:15-20. While the 311° patent (incorporated by reference) may
`
`show the CPEsinstalled at the customer premises, the 311’ patent is merely “[o]ne exemplary
`
`broadband. wireless communication system” and thus only a preferred embodiment. See ‘759
`
`patent, 3:28-34. See also Phillips, 415 F.3d at 1323 (“although the specification often describes
`
`very specific embodiments of the invention, we have repeatedly warned against confining the
`
`claims to those embodiments”). The Court additionally disagrees with the Defendants’ proposed
`
`construction language that requires the “CPE” to “relay[] data between a base station and end
`
`users.” As with the Court’s construction of “base station,” the Court believes that while there is
`
`a relationship with the CPE and end users that is briefly mentioned in the specification, the
`
`invention here refers to the relationship with the base station and the CPE. Hence,
`
`the
`
`relationship with end users is not necessaryto include in the construction of “CPE.”
`
`Finally,
`
`the Court disagrees again with Plaintiff's revised construction for the same
`
`15
`
`

`

`reasons the Court disagreed with Plaintiff's revised construction of “base station.”
`
`The
`
`“facilitates” language is not grounded in the specification as the “transmits and receives”
`
`language. Further, the Court concludesit is not necessary to include the relationship between the
`end users and the CPE. Therefore, the Court construes “CPE” as “customer side equipment in a
`
`wireless communication system that transmits data to and/or receives data from a basestation.”
`
`16
`
`

`

`3.
`
`Clann Terin/Clahn
`Language
`“receive the first link
`quality and determine a
`downlink modulation
`scheme”
`
`[claims 1, 10]
`
`“receive the second link
`quality and determine
`the uplink modulation
`scheme”
`
`[claims 1, 10]
`
` value fromthe plurality
`
`
`
`
`“receive each quality
`
`of CPEs and determine a__|
`modulation scheme”
`
`[claim 11]
`
`
`
`
`
`
`“receive/determine” elements
`
`
`I
`
`Plaintiff's Proposed Construction
`Noconstruction necessary for the
`entire phrase. Constructionis only
`necessaryfor the underlying termsin
`dispute (1.e., “first link quality,”
`“downlink modulation scheme,” and
`“modulation scheme”). The disputed
`individual terms are discussed below.
`
`No construction necessary for the
`entire phrase. Construction is only
`necessary for the underlying terms in
`dispute(i.e., “second link quality,”
`“uplink modulation scheme,” and
`“modulation scheme”). The disputed
`individual terms are discussed below.
`
`Defendants’ Proposed
`Construction
`
`“determine a downlink
`modulation scheme using the
`first link quality measured by
`the first modem and received
`by the first processor”
`
`“determine an uplink
`modulation scheme using the
`second link quality measured
`by the second modem and
`received by the second
`processor”
`
`
`No construction necessary for the
`entire phrase. Construction is only:
`necessaryfor the underlying terms in
`dispute(i.e., “quality value,”
`“modulation scheme”). The disputed
`individual terms are discussed below.
`
`
`“determine a modulation
`scheme using each quality
`value measuredbythefirst
`modem and received from the
`plurality of CPEs”
`
`
`
`
`
`Noconstruction necessary for the
`“receive the first
`“determine a downlink
`entire phrase. Construction is only
`downlink qualityfrom
`modulation scheme using the
`
`necessary for the underlying termsin
`the plurality of CPEs
`first downlink quality
`
`dispute (i.e., “first link quality,”
`and determine a
`measured bythe first modem
`and received from the plurality
`“downlink modulation scheme,” and
`downlink modulation
`
`scheme”
`“modulation scheme”). The disputed
`of CPEs”
`individual terms are discussed below.
`
`[claim 16]
`
`The Court agrees with Plaintiff that the entire “receive/determine” phase does not need
`
`
`
`construction. The specific terms (e.g., “first link quality,” “modulation scheme”) that require
`
`construction are discussed individually in later portions of this order.
`
`17
`
`

`

`A.
`
`Parties’ Construction Arguments
`
`Plaintiff argues the phrases above do not require construction because most of the terms
`
`comport with the widely accepted meaning of commonlyunderstood words. Defendants argue
`the phrases need construction. Defendants, for example, would have the Court construe “receive
`
`the first link quality and determine a downlink modulation scheme” as “determine a downlink
`
`modulation scheme using thefirst link quality measured by the first modem andreceived bythe
`
`first processor.” Hence, Defendants’ construction mainly seeks to rearrange the order of the
`29
`
`“receive”
`
`and “determine” language and add the “using” limitation in the construction.
`
`Defendants argue the “fundamental principle” of the alleged invention in the ‘759 patent is that
`
`modulation schemes are determined “using” the link quality measurements.
`
`(Dkt. No. 600, at
`
`15.) While Defendants provide nearly two pages of citations to the specification to support
`
`Defendants’ construction,
`
`(Dkt. No. 600, at 16-18),
`
`the specification language cited by
`
`Defendants does not clearly support
`
`the language used by Defendants.
`
`The specification
`
`language closest to supporting Defendants is when it states the modulation scheme is adjusted
`
`“based on” the quality measurements. See ‘759 patent, 11:18-23.
`
`B.
`
`Analysis
`
`The Court agrees with Plaintiff that the entire “receive/determine” phrases do not require
`
`construction—thespecific terms within these phrases that need construction are construed below
`
`in this claim construction order. Defendants’ proposed construction is flawed for three reasons.
`
`First, Defendants cannot
`
`identify sufficient support
`
`in the intrinsic record for the “using”
`
`limitation and there is no evidence the patentee intended the scope to be so limited. The closest
`
`evidencein the recordis the “based on” language noted above, (‘759 patent, 11:18-23), but being
`
`18
`
`

`

`“based on” the quality measurements is not the same as “using” the quality measurements. So at
`
`best, Defendants are trying to import a preferred embodiment
`
`into the claim language, but
`
`nonethele