TQ Delta Exhibit 2015
`
`Cisco Systems, Inc. v. TQ Delta, LLC
`
`IPR2016-01466
`
` 1
`
`

`

`a second processor configured to receive the second
`link quality and determine an uplink modulation
`schemefor eachof the 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 methodsinclude monitoring the
`loop to detect a shut-downcondition
`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
`
`is detected. The
`signal
`apparatuses include a modulated
`data transmitting and receiving unit
`having a connector
`for coupling
`the unit to a communicationsloop,
`circuitry to transmit and receive
`a modulated data
`signal
`in
`a
`frequency range above voiceband,
`and circuitry to detect a resume
`signal in the frequency range above
`voiceband and then to initiate a
`
`power up sequence for the transmit
`and receive circuitry.
`
`*2 Claim 1 of the #323 patent is reproduced below:
`
`A method of conserving power in 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
`detect a resumesignal that is not a modulated data
`signal and that is outside the voiceband frequency
`range on the loop; and
`
`activating demodulation circuitry when the resume
`signal is detected.
`
`Il. GENERAL PRINCIPLES GOVERNING CLAIM
`CONSTRUCTION
`
`“A claim in a patent provides the metes and bounds
`of 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.
`
`Markmany. Westview Instruments, Inc., 52 F.3d 967, 970-
`71 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370. 116 S.Ct.
`1384, 134 L.Ed.2d 577 (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 contain a written description of the
`invention that enables one of ordinary skill in the art to
`make anduse the invention. /d. A patent's claims must be
`read in viewof the specification, of which they are a part.
`Id. For claim construction purposes, the description may
`act 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.” Warts v. XL
`
`Sys. Inc., 232 F.3d 877, 882 (Fed.Cir.2000).
`
`is the function of the claims, not
`it
`Nonetheless,
`to set forth the limits of the patentee's
`specification,
`invention. Otherwise, there would be no need for claims.
`SRI Int'l vy. Matsushita Elec. Corp., 775 F.2d 1107, 1121
`(Fed.Cir.1985) (en banc). The patenteeis free to be his own
`lexicographer, but anyspecial definition given to a word
`
`must be clearlyset forth in the specification. Jntellicall, Inc.
`yv. 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.
`vy. Cooper Life
`
`Sciences, Inc., 34 F.3d 1048, 1054 (Fed.Cir.1994),
`
`
`
`
`
` 2
`
`

`

`to the claim language and most
`naturally aligns with the patent's
`description of the invention will be,
`in the end, the correct construction.
`
`
`Phillips,
`415 F.3d at
`1316. Consequently, Phillips
`emphasized the important role the specification plays in
`the claim construction process.
`
`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 WaterFiltration
`Systems, Inc., 381 F.3d 1111, 1115 (Fed.Cir.2004)). To
`to play an
`The prosecution history also continues
`that end, the words used in a claim are generally given
`role
`in
`claim
`important
`interpretation. Like
`their ordinary and customary meaning. Jd. The ordinary
`specification, the prosecution history helps to demonstrate
`and customary meaning of a claim term “is the meaning
`howthe inventor and the PTO understoodthe patent. Jd.
`that the term would have to a person of ordinaryskill in
`at 1317. Becausethefile history, however, “represents an
`the art in question at the time of the invention, i.e., as of
`ongoing negotiation between the PTO andthe applicant,”
`the effective filing date of the patent application.”Jd.at
`it may lack the clarity of the specification and thusbeless
`1313. This principle of patent law flows naturally from
`useful in claim construction proceedings. Jd. Nevertheless,
`the recognition that inventorsare usually persons who are
`the prosecutionhistoryis intrinsic evidencethat is relevant
`skilled in the field of the invention and that patents are
`to the determination of how the inventor understood the
`addressed to and intendedto be read by others skilled in
`invention and whetherthe inventor limited the invention
`the particularart. [d.
`
`*3 The primacyof claim terms notwithstanding, Phillips
`made clear that “the person of ordinary skill
`in the
`art
`is deemed to read the claim term not only in the
`context of 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 primary basis 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 y. Coe, 98 U.S. 31, 38, 25 L.Ed. 68 (1878).
`In addressing the role of the specification, the Phillips
`court quoted with approvalits earlier observations from
`
`Renishaw PLC vy. Marposs Societa ‘per Azioni, 158 F.3d
`1243, 1250 (Fed.Cir.1998):
`
`the interpretation to
`Ultimately,
`term can only be
`be given a
`determined and confirmed with a
`full understanding of what
`the
`inventors
`invented and
`actually
`intended to envelop with the claim.
`
`during prosecution by narrowing the scope ofthe claims.
`Td.
`
`Phillips rejected any claim construction approach that
`sacrificed the intrinsic record in favor of extrinsic
`
`such as dictionary definitions or expert
`evidence,
`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 meaningof the claimterms(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 dictionary definitions 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.”
`Id. at 1321. Phillips emphasized that the patent system
`is based on the proposition that the claims cover only
`the invented subject matter. Jd What
`is 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'
`
`
`
`
`
`
`
` 3
`
`

`

`a word. Jd. at 1321-22.
`
`bearing in mind the general rule that the claims measure
`the scope of the patent grant.
`
`*4 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
`constructionissuesare 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
`Claim Terms in #759 Patent
`
`“downlink modulation scheme”
`
`“uplink modulation scheme”
`
`“downlink”
`
`“uplink”
`
`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:
`
`Agreed Construction
`
`“a modulation scheme for use in
`a downlink”
`
`“a modulation scheme for usein
`an uplink”
`
`“a communication link from a
`base station to a CPE”
`
`“a communication link from a
`CPE to a base station”
`
`Claim Terms in #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”
`
`V. TERMSIN DISPUTE OF THE #759 PATENT
`Claim Term/
`Plaintiff's
`Claim Language
`Proposed
`Construction
`
`1. “base station”
`
`“equipment
`in a wireless
`communication
`system that
`transmits data to
`a CPE”
`
`“base station”
`
`[claims 1, 3-4,
`10-12, 15-16,
`19, 24-26]
`
`Defendants'
`Proposed
`Construction
`
`“fixed station
`in a wireless
`communication
`system that
`relays data
`between a
`fixed network
`infrastructure and
`at least one CPE”
`
` 4
`
`

`

`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”
`
`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 ....”
`
`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
`Plaintiff's 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 language 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
`Plaintiffs 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 theparties.
`
`*5 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 ordinary
`skill
`in the art would have known that base stations
`
`were fixed stations at the time ofthe 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, eg., # 311
`patent, Figure 4. Defendants' construction additionally
`requires the fixed station to “relay” data between a fixed
`networkinfrastructure and at least one CPE. Defendants'
`
`argumentrelies on the figures and the specification of the
`#311 patent that show the base station communicating
`with both the CPEs on one end and networkinfrastructure
`
`on the other end. Jd.
`
`B. Analysis
`The Court
`
`construes
`
`the term “base
`
`station”
`
`in a wireless communication system that
`“equipment
`transmits data to and/or receives data from a CPE.”
`
`While the Court mostly agrees with Plaintiff's original
`reads
`construction that
`in
`a_ wireless
`“equipment
`
`
`
` 5
`
`

`

`Courtbelievesit 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 bythe 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 by a 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 informationto 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 receiveat all times, as in someinstances,
`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 bythe base
`station 102 to transmit information to the plurality of
`CPEs.”).
`
`*@ Defendants' construction is problematic because it
`imposes an additional limitation that the base station be
`fixed. “[U]nless required bythe specification, limitations
`that do not otherwise appear
`in the claims should
`
`not be imported into the claims.” N. Am. Container
`Inc.
`y. Plastipak Packaging, Inc., 415 F.3d 1335. 1348
`(Fed.Cir.2005). The Court concludesthat 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 meaning of
`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 byreference in the #759 patent, but the
`#759 patent states that the #311 patent is merely “[o]ne
`exemplary broadband wireless communications system.”
`
`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 shows basestations 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 known
`at 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 meaningof basestation at the
`time of the filing of the #759 patent did not require the
`base stations befixed.
`
`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
`
`at the ordinary meaning of a term ... In a vacuum ...
`[rJjather, we must look at the ordinary meaning in the
`context of the written description and the prosecution
`history.” Medrad, Inc.
`vy. MRI Devices Corp., 401 F.3d
`1319 (Fed.Cir.2005) (internal quotations omitted). The
`patent's written description onlybriefly mentionsthefixed
`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 CPEs and not any
`relationship with fixed network infrastructure. See, e.g.,
`
`
`
`
`
` 6
`
`

`

`communication system that only includesthe base station
`and the CPEs); #759 patent, FIGs. 6a and 6b (describing
`the invention and focusing only on the relationship
`between the base station and the CPE). Therefore, it is
`not necessaryto include the relationship between the base
`station and the fixed network infrastructure becauseit is
`
`not a keypart of the invention and consequentlyit wilt not
`be helpful to the jury.
`
`*7 Finally, Plaintiff offered a revised construction
`at
`the hearing, but Plaintiffs
`revised construction
`suffers
`the
`same
`flaws
`as Defendants’ proposed
`construction. Plaintiff's revised construction uses the
`
`1:45-47 (“These broadband networksfacilitate two-way
`communication between a base station and a plurality
`of fixed subscriber units.”). But as noted above,
`“transmits and receives” language is located throughout
`the specification and the claims, so that languageis better
`groundedinthe 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 networkinfrastructure 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 communicationsystem that transmits data to
`and/or receives data from a CPE.”
`
`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
`Plaintiff's Proposed
`Claim Term/Claim
`Language
`Construction
`
`2. “CPE” (customer premises equipment)
`
`Defendants’ Proposed
`Construction
`
`“CPE”
`
`“equipment in a wireless
`communication system that
`transmits data to a base
`station”
`
`“equipment installed at a
`customer premises that
`relays data between a base
`station and end users”
`
`[claims 1-3, 10-11, 15-16,
`19, 24-27]
`
`Plaintiff also offered a
`revised construction at
`the hearing which reads:
`“equipment in a wireless
`communication system that
`facilitates communication
`between a base station and
`at least one end user”
`
`“1. A wireless communication
`system ... comprising:
`a basestation having a
`second modem configured
`to measure a second link
`quality for each of the
`plurality of CPE based on
`received uplink data...”
`
`Plaintiffs construction—readsoriginal proposed
`
`
`
`The Court construes “CPE” (or customer premises
`“equipment
`in a wireless communication system that
`equipment) as “customer side equipment in a wireless
`transmits data to a base station.” Plaintiffs rationale
`communication system that
`transmits data to and/or
`receives data from a base station.” This construction is
`
`its original construction of “CPE” is essentially
`for
`the same as its rationale for its construction of “base
`
`similar to the construction of base station, as the base
`station and the CPEarerelated.
`
`A. Parties’ Construction Arguments
`
`
`
`
`
`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
`
` 7
`
`

`

`as well, and Plaintiff provides essentially the same support
`for the construction of “CPE” as Plaintiff did for “base
`station.”
`
`*8 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 dictionarydefinitions
`that show one ofordinaryskill in at the art at the time
`of filing would have know the CPE must beinstalled at
`a customer premises. As with Defendants' argument for
`“base station,” Defendants also argue the #311 patent
`(incorporated byreference in the patent-in-suit) explicitly
`showsthe CPEbeinginstalled at the customer premises.
`See #311 patent, Figure 7. Defendants also ask the Court
`to construe CPE as requiring the CPE to “relay [
`]
`data betweena base station-and end users.” Defendants'
`
`argument here cites to the specification where it states
`that the CPE is coupled to end users in addition to the
`base station. See, e.g., #759 patent, 4:13-14 (“Each CPE
`is 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” language.
`Furthermore,
`the Court adds the language “customer
`side” to the beginning of Plaintiff's original construction.
`The Court concludes that merelystating “equipment”is
`‘not sufficient because it would fail to give effect to the
`“customer premises” languagein the actual claim term.
`
`equipment, the specification shows that the equipment
`need not be installed at
`the customer premises. The
`specification neverlimits the CPEsto beinginstalled 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 showthe CPEsinstalled
`at the customer premises, the 311# patent is merely “[o]
`ne exemplary broadbandwireless 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 basestation 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 necessary to include in the construction of
`“CPE,”
`
`the Court disagrees again with Plaintiff's
`*9 Finally,
`revised construction for the same 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 base
`station.”
`
`However, the Court disagrees with Defendants that the
`equipment must be installed at a customer premises.
`Claim Term/
`Plaintiff's
`Claim Language
`Proposed
`Construction
`
`3. “receive/determine” elements
`
`“receive the
`first link quality
`and determine
`a downlink
`
`No construction
`necessary for the
`entire phrase.
`Construction is
`
`
`
`
`
`
`
`Defendants'
`Proposed
`Construction
`
`“determine
`a downlink
`modulation
`scheme using the
`
` 8
`
`

`

`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”
`
`“determine a
`modulation
`scheme using
`each quality
`value measured
`by the first
`modem and
`received from the
`plurality of CPEs”
`
`for the underlying
`terms in dispute
`(i.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.
`
`No construction
`necessary for the
`entire phrase.
`Construction is
`only necessary
`for the underlying
`terms in
`dispute(i.e.,
`“quality value,”
`“modulation
`scheme’).
`The disputed
`individual terms
`are discussed
`below.
`
`No construction
`necessary for the
`
`“determine
`a downlink
`
`[claims 1, 10]
`
`“receive the
`second link
`quality and
`determine the
`uplink modulation
`scheme”
`
`[claims 1, 10]
`
`“receive each
`quality value
`from the plurality
`of CPEs and
`determine a
`modulation
`scheme”
`
`[claim 11]
`
`“receive the
`first downlink
`
` 9
`
`

`

`plurality of CPEs
`and determine
`a downlink
`modulation
`scheme”
`
`scheme using
`the first downlink
`quality measured
`by the first
`modem and
`received from the
`plurality of CPEs”
`
`only necessary
`for the underlying
`terms in dispute
`(i.e., “first
`link quality,”
`“downlink
`modulation
`scheme,” and
`“modulation
`scheme”).
`The disputed
`individual terms
`are discussed
`below.
`
`The Court agrees with Plaintiff that the entire “receive/
`determine” phase does not need construction. Thespecific
`terms (e.g., “first link quality,” “modulation scheme”)
`that require construction are discussed individually in
`later portions of this order.
`
`A. Parties' Construction Arguments
`*10 Plaintiff argues the phrases above do not require
`construction because most of the terms comport with
`the widely accepted meaning of commonly understood
`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 usingthefirst link quality
`measured by the first modem and received by the
`first processor.” Hence, Defendants’ construction mainly
`seeks
`to rearrange the order of the “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 pagesof 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
`schemeis 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—the
`specific 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 evidence in the record is the
`
`“based on” language noted above, (#759 patent, 11:18-
`23), but being “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 nonetheless,
`Defendants have not pointed to a single embodiment
`that has the “using” limitation. Second, Defendants are
`improperly repeating limitations found elsewhere-in the
`claim-Defendants repeat the limitation that the “first link
`quality” be “measured bythe first modem,” which is
`specifically addressed as an earlier claim element, for
`example,
`in claim 1. #759 patent, 14:56-15:9. Third,
`Defendants are reversing the order of the “receive” and
`“determine” clauses and changing the verb “receive”
`to “received” in order to impose a temporal limitation
`in the claim. Defendants cannot find support
`specification for this temporal limitation. Therefore, the
`Court agrees with’ Plaintiff that
`the entire phase that
`recites the “receive” and “determine” elements does not
`
`need construction. The specific terms in those phrases
`that need construction are construed below in this claim
`
`constructionorder, so the entire phrases themselves will be
`understandable to a jury wheneverthe individual disputed
`terms are construed bythe Court.
`
`
`10
`
`
`10
`
`

`

`Claim Term
`
`Plaintiff's Proposed
`Construction
`
`Defendants’ Proposed
`Construction
`
`“modulation scheme”
`
`“a technique by which a
`modulator converts digital
`data into a modulated analog
`signal and a demodulator
`converts the modulated
`analog signal backto digital
`data”
`
`“a method of converting
`digital data to an analog
`signal and converting it back
`to its original form”
`
`[claims 1, 10-12, 15-16, 19,
`24-25]
`
`For example, in claim 1: “a
`first processor configured to
`receive the first link quality
`and determine a downlink
`modulation scheme for each
`of the plurality of CPE”
`
`*11 The Court construes “modulation scheme” as
`
`“a technique by which digital data is converted into
`modulated analog signal and the modulated analog
`signal is converted back to demodulated digital data.”
`This
`construction is
`primarily in
`agreement with
`Plaintiffs proposed construction; however,
`the Court
`has altered Plaintiffs proposed construction because the
`“modulator” and “demodulator” language in Plaintiff's
`construction is not groundedin the specification.
`
`A. Parties' Construction Arguments
`Plaintiffs proposed construction construes “modulation
`scheme”
`as
`“a
`technique by which a modulator
`converts digital data into a modulated analog signal
`and a demodulator converts the modulated analog
`signal back to digital data.” In support of Plaintiff's
`proposed construction, Plaintiff argues first
`that
`the
`specification uses the words “scheme” and “technique”
`interchangeably, so this ans Plaintiff's construction
`of “modulation scheme” as “a technique.” See, e.g.,
`#757 patent, Abstract; 2:65-66. Plaintiff also argues
`the inclusion of “modulator” and “demodulator” in
`
`implement
`the construction identifies structures that
`the “modulation scheme” and therefore provide context
`to the construction. Plaintiff argues the specification
`provides support