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

`

`link quality and determine an uplink modulation
`scheme for each of the plurality of CPE.
`
`The abstract of the #323 patent states:
`
`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 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-
`down condition;
`
`detect a resume signal 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.
`
`III. GENERAL PRINCIPLES GOVERNING CLAIIW
`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 orrselling the
`
`protected invention.” Burke, Inc. v. Bruno Indcp. Living
`
`Aids, Inc, 183 F.3d 1334. 1340 (Fed.Cir.1999). Claim
`construction is an issue of law for the court to decide.
`
`Mar/anan r. WesrviewInstruments, Inc. 52 F.3d 967. 970—
`
`71 [Fed.Cir.19951 (en banc), afl‘d, 517 US. 370. 116 S.Ct.
`1384. 134 L.Ed.2d 577 (19961.
`
`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 and use the invention. Id. A patent's claims must be
`read in View of 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. Id. “One purpose
`for examining the specification is to determine if the
`patentee has limited the scope of the claims.” Warts r. XL
`
`Sis, Inc. 232 F.3d 877. 882 (Fed.Cir.2000).
`
`Nonetheless,
`
`it
`
`is the function of the claims, not
`
`to set forth the limits of the patentee's
`specification,
`invention. Otherwise, there would be no need for claims.
`
`SR] [111'] v. Mamas/lira Elec. Corp, 775 F.2d 1107 1121
`
`(Fed.Cir.19851 (en bane). 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. Intel/real] Inc.
`v. Phonomerrics. 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. Electra filed. Si‘s. SA.
`v. Cooger Life
`
`Sciences Inc. 34 F.3d 1048, 1054 tFed.Cir.l994).
`
`
`
`
`
` 2
`
`

`

`by the Federal Circuit's decision in Phillips v. A WH
`
`Comoration, 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
`
`to exclude.” 415 F.3d at 1312 (emphasis added)
`right
`
`(quoting lnnova/Pul'e Wafer, Inc. 1‘. Sa (117‘ 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. Id. The ordinary
`and customary meaning of a claim term “is the meaning
`that the term would have to a person of ordinary skill in
`the art in question at the time of the invention, i.e., as of
`
`the effective filing date of the patent application." Id. 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 by others skilled in
`the particular art. Id.
`
`*3 The primacy of 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.” Id. Although the claims themselves
`
`may provide guidance as to the meaning of particular
`terms. those terms are part of “a fully integrated written
`
`instrument.” Id. at 1315, quoting Markman 52 F.3d at
`
`M. Thus, the Phillips court emphasized the specification
`as being the primary basis for construing the claims. Id.
`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.” Bales v. Coe, 98 US. 31. 38. 25 L.Ed. 68 (1878).
`
`In addressing the role of the specification, the Phillips
`court quoted with approval its earlier observations from
`
`Renishan‘ PLC 1’. Marposs Sociem ‘per Azioni, 158 F.3d
`1243. 1250 (Fed.Cir.l9981z
`
`the interpretation to
`Ultimately,
`term can only be
`be given a
`determined and confirmed with a
`
`the
`full understanding of what
`inventors
`invented and
`actually
`
`intended to envelop with the claim.
`
`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.
`
`to play an
`The prosecution history also continues
`role
`in
`claim
`important
`interpretation. Like
`specification, the prosecution history helps to demonstrate
`how the inventor and the PTO understood the patent. Id.
`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. Id. Nevertheless,
`the prosecution history is intrinsic evidence that is relevant
`to the determination of how the inventor understood the
`invention and whether the inventor limited the invention
`
`during prosecution by narrowing the scope of the claims.
`Id.
`
`Phillips rejected any claim construction approach that
`sacrificed the intrinsic record in favor of extrinsic
`
`evidence,
`
`such as dictionary definitions or expert
`testimony. The en banc court condemned the suggestion
`
`made by Texas Diviial Si'srems. Inc. 1’. Telegenix, Inc. 308
`F.3d 1193 gFed.Cir.2002L 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—
`
`E. 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. Id 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.
`Id. 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.
`Id. The definitions found
`
`in dictionaries, however, often flow from the editors'
`
`
`
`
`
`
`
` 3
`
`

`

`a word. Id. at l32]~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
`
`the court
`in claim construction proceedings. Instead,
`assigned dictionaries a role subordinate to the intrinsic
`
`the court emphasized that claim
`record. In doing so,
`construction issues are not resolved by any magic formula.
`
`The court did not impose any particular sequence of steps
`for a court to follow when it considers disputed claim
`language. [(1. at 1323—25. Rather, Phi/lips 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 by the
`Court:
`
`Agreed Construction
`
`“a modulation scheme for use in
`a downlink”
`
`“a modulatiOn scheme for use in
`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
`
`Ag reed Construction
`
`“communications loop” / “loop”
`
`“wire that exists between units”
`
`' “net a modulated data signal”
`
`"
`“not a'Signalconveying data '
`through variation of amplitude,
`frequency, and/or phase”
`
`V. TERIVIS IN DISPUTE OF THE #759 PATENT
`
`1. “base station”
`
`Claim Terml
`
`Claim Language
`
`“base station”
`
`[claims 1, 3—4,
`10—12,15—16,
`19, 24—26]
`
`Plaintiff's
`
`Proposed
`Construction
`
`“equipment
`in a wireless
`communication
`
`system that
`transmits data to
`a CPE”
`
`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
`
`the hearing that
`construction, but Plaintiff argued at
`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.
`
`*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 of the filing of the #E
`pa_ten_t. Defendants also point out that the #759 patent
`
`incorporates US. Patent No. 6.016.311 (tiled Nov. 19,
`
`E) (the #311 patent) by reference, and the #311 patent
`shows base stations in fixed locations. See, e.g., # 311
`m, Figure 4. Defendants' construction additionally
`requires the fixed station to “relay” data between a fixed
`network infrastructure and at least one CPE. Defendants'
`
`argument relies on the figures and the specification of the
`#311 patent that show the base station communicating
`with both the CPEs on one end and network infrastructure
`
`on the other end. [_d.
`
`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
`“equipment
`in
`a wireless
`
`
`
` 5
`
`

`

`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 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 scheme at
`the base station. transmitting a third frame of data by
`
`the base station to the CPE”); # 759 patent, 3:38—40 (“3
`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.”).
`
`*6 Defendants‘ construction is problematic because it
`imposes an additional limitation that the base station be
`
`fixed. “[U]nless required by the specification, limitations
`that do not 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 meaning of
`that term.
`the Court disagrees. Nowhere in the #Zfi
`,rLent does the inventor limit the base station to a fixed
`
`a preferred embodiment at best, and it is incorrect for
`
`to read in a limitation from a preferred
`the Court
`embodiment. P/zz'l/igs. 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 base stations that are
`
`fixed, the #311 patent never explicitly limits or defines
`
`base stations as being fixed. Finally, as Plaintiff points
`out, one of ordinary skill in the art would have known
`
`at the time the #759 patent was filed 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 of base station at the
`
`time of the filing of the #759 patent did not require the
`base stations 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
`
`in a vacuum
`at the ordinary meaning of a term
`[r]ather, we must look at the ordinary meaning in the
`
`context of the written description and the prosecution
`history.” Medrad. Inc.
`v. MRI Devices Corp. 401 F.3d
`1319 (Fed.Cir.2005) (internal quotations omitted). The
`patent's written description only briefly 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 between a plurality
`of subscriber units and their respective base stations in
`order to connect a subscriber unit user with the 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 #31 l patent is merely “[o]ne
`exemplary broadband wireless communications system.”
`
`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 includes the 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 necessary to include the relationship between the base
`station and the fixed network infrastructure because it is
`
`not a key part ofthe invention and consequently it wilt not
`be helpful to the jury.
`
`*7 Finally, Plaintiff offered a revised construction
`at
`the hearing, but Plaintiff‘s
`revised construction
`
`as Defendants' proposed
`flaws
`same
`the
`suffers
`construction. Plaintiff‘s revised construction uses the
`
`language “facilitates,” yet there is not sufficient grounding
`
`language as there is for
`in the specification for that
`the “transmits and receives” language. The “facilitate”
`
`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,
`
`“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.”
`
`language is only used when describing the prior art
`Claim Term/Claim
`Plaintiff‘s Proposed
`Construction
`
`Language
`
`2. “CPE” (customer premises equipment)
`
`Defendants' Proposed
`Construction
`
`HOPE)!
`
`“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 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 “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 are related.
`
`A. Parties' Construction Arguments
`
`
`
`
`
`construction
`proposed
`original
`Plaintiffs
`in a wireless communication system that
`“equipment
`transmits data to a base station.” Plaintiff‘s rationale
`
`its original construction of “CPE” is essentially
`for
`the same as its rationale for its construction of “base
`
`station.” Plaintiff‘s revised proposed construction reads
`
`in a wireless communication system that
`“equipment
`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 dictionary definitions
`that show one of ordinary skill in at the art at the time
`of filing would have know the CPE must be installed 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 CPE being installed at the customer premises.
`See #311 patent, Figure 7. Defendants also 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 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 Plaintiffs
`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 Plaintiffs 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. 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 3ll# patent
`(incorporated by reference) may show the CPEs installed
`
`at the customer premises, the 31 l# patent is merely “[0]
`me 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 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 Plaintiffs revised construction of “base
`
`station.” The “facilitates” language is not grounded in
`the specification as the “transmits and receives" language.
`Further, the Court concludes it 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 corrununication system that
`transmits data to and/or receives data from a base
`station.”
`
`3. “receive/determine” elements
`
`equipment must be installed at a customer premises.
`Claim Term/
`Plaintiff's
`Claim Language
`Proposed
`Construction
`
`“receive the
`
`first link quality
`and determine
`a down/ink
`
`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.
`
`[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
`
`No construction
`
`necessary for the
`
`“determine
`a downlink
`
` 9
`
`

`

`plurality of CPEs
`and determine
`a downlink
`modulation
`scheme”
`
`scheme using
`the first downlink
`quality measured
`by the first
`modern 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. The specific
`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
`
`link quality and determine
`construe “receive the first
`a downlink modulation scheme”
`as
`“determine
`a
`
`downlink modulation scheme using the first 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 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, 1l2l8—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 elsewhereein the
`
`claim-Defendants repeat the limitation that the “first link
`quality” be “measured by the first modem,” which is
`specifically addressed as an earlier claim element, for
`
`in claim 1. #759 patent, 14:56—15z9. Third,
`example,
`Defendants are reversing the order of the “receive” and
`“determine” clauses and changing the verb “receive”
`
`t0 “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
`
`construction order, so the entire phrases themselves will be
`understandable to a jury whenever the individual disputed
`terms are construed by the Court.
`
`
`10
`
`
`10
`
`

`

`Plaintiff's Proposed
`Construction
`
`Defendants' Proposed
`Construction
`
`“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”
`
`“3 method of converting
`digital data to an analog
`signal and converting it back
`to its original form”
`
`Claim Term
`
`"modulation scheme”
`
`[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
`Plaintiff‘s proposed construction; however.
`the Court
`has altered Plaintiff‘s proposed construction because the
`“modulator” and “demodulator” language in Plaintiff's
`
`construction is not grounded in the specification.
`
`A. Parties‘ Construction Arguments
`Plaintiff‘s proposed construction construes “modulation
`
`technique by which a modulator
`“a
`as
`scheme”
`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 supports Plaintiffs construction
`of “modulation scheme” as “a technique.” See, eflg,
`#757 patent, Abstract; 2:65—66. Plaintiff also argues
`the inclusion of “modulator” and “demodulator” in
`
`implement
`the constru