Case: 21-1387 Document: 31 Page: 1 Filed: 01/25/2022
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`APPLE INC.,
`Appellant
`
`v.
`
`MPH TECHNOLOGIES OY,
`Appellee
`______________________
`
`2021-1387
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2019-
`00821.
`
`______________________
`
`Decided: January 25, 2022
`______________________
`
`SETH W. LLOYD, Morrison & Foerster LLP, Washing-
`ton, DC, argued for appellant. Also represented by BRIAN
`ROBERT MATSUI, JOSEPH R. PALMORE, MICHAEL QIAN;
`RICHARD HUNG, San Francisco, CA; BITA RAHEBI, Los An-
`geles, CA.
`
` BRIAN ERIK HAAN, Lee Sheikh Megley & Haan LLC,
`Chicago, IL, argued for appellee. Also represented by
`ASHLEY E. LAVALLEY, CHRISTOPHER LEE, RICHARD BURNS
`
`

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`Case: 21-1387 Document: 31 Page: 2 Filed: 01/25/2022
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`APPLE INC. v. MPH TECHNOLOGIES OY
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`MEGLEY, JR.; JAMES CARMICHAEL, STEPHEN TERRY
`SCHREINER, Carmichael IP, PLLC, Tysons Corner, VA.
` ______________________
`
`Before LOURIE, HUGHES, and CUNNINGHAM, Circuit
`Judges.
`
`LOURIE, Circuit Judge.
`Apple Inc. (“Apple”) appeals from the final written de-
`cision of the Patent Trial and Appeal Board (the “Board”)
`holding that Apple failed to demonstrate that claims 1–16
`of U.S. Patent 8,037,302 (the “’302 patent”) were unpatent-
`able. See Apple Inc. v. MPH Technologies Oy, No. IPR2019-
`00821, 2020 WL 5900607 (P.T.A.B. Oct. 5, 2020) (“Deci-
`sion”). For the reasons provided below, we affirm.
`BACKGROUND
`MPH Technologies Oy (“MPH”) owns the ’302 patent,
`which relates to providing secure connections in telecom-
`munication networks. The specification explains that IP
`security protocols (“IPSec”) provide the capability to secure
`connections through encryption and authentication. ’302
`patent, col. 1 ll. 38–49. A security association is a relation-
`ship between a sender and receiver that offers security ser-
`vices to the traffic carried on it. Id. at col. 1 ll. 62–67. The
`specification states that IPSec was designed for use with
`hosts that are relatively static. Id. at col. 2 ll. 19–49. IP
`routing for telecommunication is based on fixed IP ad-
`dresses, so IPSec may not work well with mobile devices.
`Id. If a mobile host moves from one network to another, a
`time-consuming IPSec connection set up is required. Id.
`The patent discloses avoiding the need to set up an IPSec
`connection when a mobile terminal changes networks by
`relying on a security association that is already estab-
`lished. See, id., at col. 10 ll. 39–43; col. 10 ll. 51–56.
`Claim 1, the sole independent claim, reads as follows:
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`Case: 21-1387 Document: 31 Page: 3 Filed: 01/25/2022
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`APPLE INC. v. MPH TECHNOLOGIES OY
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`1. A method for ensuring secure forwarding of a
`message in a telecommunication network, compris-
`ing:
`providing a first terminal from which the message
`is sent and a second terminal to which the message
`is sent,
`a) establishing a first secure connection as
`being an active connection and extending
`between a first network address of the first
`terminal and an original network address
`of the second terminal, establishing a sec-
`ond secure connection extending between a
`second network address of the first termi-
`nal and the original network address of the
`second terminal,
`b) the first terminal changing from the first
`network address to the second network ad-
`dress,
`the first terminal checking whether the
`second secure connection already exists,
`and
`c) when the second secure connection al-
`ready exists, the second terminal register-
`ing the already established second secure
`connection as being the active connection
`without having to reestablish the second
`secure connection.
`’302 patent, col. 12 ll. 15–34 (emphasis added).
`Apple filed a petition for inter partes review of
`claims 1–16 of the ’302 patent. Apple argued that
`claims 1–13 and 16 would have been obvious over Int’l Pa-
`tent Pub. WO 01/54379 A1 (“Ahonen”) in view of U.S. Pa-
`tent 6,904,466 (“Ishiyama”). J.A. 38, 44. Apple also argued
`that claims 14 and 15 would have been obvious over
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`APPLE INC. v. MPH TECHNOLOGIES OY
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`Ahonen and Ishiyama in view of a conference proceeding
`publication titled “Complete Computing” (“Gupta”).1 Id. at
`45.
`The parties initially identified the term “establishing a
`. . . secure connection” for construction. Decision, 2020 WL
`5900607, at *4 (the “establishing limitation”). MPH sug-
`gested that the establishing limitation should be construed
`to require forming or creating a new secure connection, and
`Apple agreed. Id.; J.A. 320. Specifically, Apple stated that
`the parties agreed on the claim construction for the estab-
`lishing limitation but disputed its application to the prior
`art references. J.A. 319–20.
`Although Apple agreed to MPH’s proposal, MPH noted
`the possibility that construction of the establishing limita-
`tion was still in dispute. Specifically, MPH argued that es-
`tablishing a security association does not
`include
`modifying or activating a security association. J.A. 352–
`61. During the hearing on July 17, 2020, the Board asked
`Apple to explain its position regarding construction of the
`establishing limitation. Apple’s counsel reaffirmed its be-
`lief that the plain and ordinary meaning, “forming or cre-
`ating a new secure connection,” should apply. J.A. 416–17.
`The Board thus construed “establishing a . . . secure con-
`nection” as meaning “forming or creating a new secure con-
`nection.” Decision, 2020 WL 5900607, at *4.
`The Board’s determination regarding obviousness
`hinged on whether Ahonen taught the establishing limita-
`tion. Id. at *6, *9. During its analysis, the Board stated
`that the establishing limitation has two requirements:
`“that the secure connection is established (i) as ‘extending
`between a first network address of the first terminal and
`
`
`1 Vipul Gupta, et al., Complete Computing,
`WWCA ’98 Proc. 2D Int’l Conf. on Worldwide Computing
`and Its Applications (Mar. 4–5, 1998).
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`an original network address of the second terminal’ and
`(ii) ‘as being an active connection.’” Id. at *6. “[T]he first
`requirement is met by ‘forming or creating a new secure
`connection’ between the claimed addresses.” Id. For the
`second requirement, the Board analyzed the ’302 patent
`and determined that “the claim language requires that
`when the first secure connection is established, it is regis-
`tered as being an active connection.” Id. The Board con-
`cluded that “a secure connection [is] established as an
`active connection (i.e., being available for immediate use
`when the secure connection is formed) [but] does not re-
`quire immediate use.” Id. at *7.
`The Board agreed with MPH that Ahonen fails to teach
`the establishing limitation. The Board determined that
`“Ahonen fails to teach that the first secure connection is
`registered as being an active connection when the first se-
`cure connection is formed.” Id. at *8. The Board explained
`that Ahonen teaches creating a security association during
`a preparations stage and that a remote mobile user may
`remotely activate the preexisting connection during a re-
`mote control stage. Id. Thus, when the Ahonen secure con-
`nection is formed, it is not active.
`In making this determination, the Board relied in part
`on Ahonen’s teachings about remote control flag operation.
`Ahonen explains that information about each of the secu-
`rity associations can include a remote control flag indicat-
`ing whether the security association has been activated by
`a mobile host from outside the intranet. Id. at *9 (citing
`’302 patent, col. 15 ll. 15–16; col. 15 l. 31–col. 16 l. 2). A re-
`mote control flag is initially set to “Off” during the prepa-
`rations stage and is changed to “On” when remotely
`activated by a mobile user. Id. An “Off” flag means that
`the security association has not been activated by the re-
`mote control function. Id. The flag is set to “On” after the
`firewall receives a valid control authorization certificate
`from the mobile host. Id. (citing ’302 patent, col. 17 ll. 1–
`32).
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`APPLE INC. v. MPH TECHNOLOGIES OY
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`The Board credited MPH’s expert’s opinion, which
`stated that a person of skill in the art would understand
`the establishing limitation “to mean that the first secure
`connection is established as an active connection for imme-
`diate use, as opposed to an inactive connection reserved for
`later use.” Id. at *6. MPH’s expert stated that “the term
`not only requires creating or forming a new secure connec-
`tion, but also creating or forming a new secure connection
`as being an active connection.” Id. The Board found MPH’s
`expert’s opinion “consistent with the plain and ordinary
`meaning of the limitation’s claim language and the ’302 pa-
`tent’s [s]pecification.” Id. at *7. In contrast, the Board
`gave Apple’s expert’s opinion little weight, finding that tes-
`timony “contrary to the plain claim language and the
`[s]pecification’s teachings,” “contrary to Ahonen’s teach-
`ings,” and “without sufficient factual corroboration.” Id.
`at *8, *9.
`The Board concluded that Apple failed to show by a pre-
`ponderance of the evidence that claims 1–16 of the ’302 pa-
`tent are unpatentable. Id. at *9. Apple appealed. We have
`jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
`DISCUSSION
`We review the Board’s legal determinations de novo, In
`re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), but we re-
`view the Board’s factual findings underlying those deter-
`minations for substantial evidence, In re Gartside, 203 F.3d
`1305, 1316 (Fed. Cir. 2000). A finding is supported by sub-
`stantial evidence if a reasonable mind might accept the ev-
`idence as adequate to support the finding. Consol. Edison
`Co. v. NLRB, 305 U.S. 197, 229 (1938).
`Apple raises two challenges on appeal. First, Apple
`contends that the Board erred in construing the establish-
`ing limitation. Second, Apple argues that the Board’s de-
`termination that Ahonen fails to disclose the establishing
`limitation is unsupported by substantial evidence.
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`Case: 21-1387 Document: 31 Page: 7 Filed: 01/25/2022
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`APPLE INC. v. MPH TECHNOLOGIES OY
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`I
`We first consider Apple’s claim construction challenge.
`Claim construction is a matter of law that we review de
`novo. See Poly-America, L.P. v. API Indus., Inc., 839 F.3d
`1131, 1135–36 (Fed. Cir. 2016).
`Apple argues that the Board erred in construing the es-
`tablishing limitation. Apple contends that the Board im-
`properly narrowed the establishing limitation by including
`a timing restriction and by excluding embodiments where
`a new connection is created by modifying an existing con-
`nection. Apple argues that the claims do not restrict when
`or how a secure connection becomes active. Apple contends
`that activating a secure connection can take place sepa-
`rately in time from when a connection is first formed and
`that an existing connection can be modified to establish a
`connection as active.
`MPH responds that Apple failed to raise its claim con-
`struction arguments before the Board. MPH contends that
`Apple informed the Board that the only dispute before it
`was the application of the agreed-upon construction to the
`prior art. MPH thus argues that Apple’s failure to raise its
`claim construction arguments before the Board compels a
`finding of forfeiture. See In re Google Tech. Holdings LLC,
`980 F.3d 858, 862–63 (Fed. Cir. 2020) (interpreting the
`U.S.P.T.O.’s waiver argument as a forfeiture argument).
`Additionally, MPH argues that the Board did not impose
`unnecessary restrictions into the establishing limitation.
`MPH contends that the Board properly adopted the parties’
`agreed-upon construction of the establishing limitation,
`analyzed and applied the plain and ordinary meaning of
`the limitation, and found that Ahonen’s remote activation
`of a preexisting and inactive security association does not
`meet the establishing limitation of claim 1.
`We agree with MPH that, contrary to Apple’s position
`on appeal, Apple only disputed the application of the
`agreed construction to the prior art. In its reply brief to
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`APPLE INC. v. MPH TECHNOLOGIES OY
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`MPH’s response, Apple stated that construction of the es-
`tablishing limitation was not at issue–only the factual ap-
`plication of the construction to Ahonen’s teachings. In
`response to questioning at the hearing concerning whether
`claim construction was in dispute, Apple maintained that
`the parties agreed on the construction of the establishing
`limitation and argued only about the application of the con-
`struction to Ahonen. Furthermore, Apple does not argue
`that the Board engaged in sua sponte construction or that
`there are exceptional circumstances that justify departing
`from the forfeiture principle.
`It is clear from the record that Apple chose not to char-
`acterize its dispute concerning the establishing limitation
`as a claim construction issue before the Board. Apple at-
`tempts here, in contrast, to recharacterize that same dis-
`pute as a construction issue deserving of de novo review.
`MPH’s expert’s declaration put Apple on notice that MPH
`was taking the position that a person of skill would under-
`stand the establishing limitation “to mean that the first se-
`cure connection is established as an active connection for
`immediate use, as opposed to an inactive connection re-
`served for later use.” See Decision, 2020 WL 5900607,
`at *6–7; J.A. 2028. With the knowledge of MPH’s position,
`Apple continued to maintain that there was no further dis-
`pute concerning construction of the establishing limitation.
`After the Board agreed with MPH and MPH’s expert, how-
`ever, Apple changed its strategy and characterized the is-
`sue as a claim construction dispute. We do not encourage
`“suggesting or permitting, for strategic reasons, that [the
`Board] pursue a certain course, and later—if the outcome
`is unfavorable—claiming that the course followed was re-
`versible error.” Google, 980 F.3d at 864 (internal quotation
`marks omitted).
`We conclude that Apple forfeited its arguments as to
`the construction of the establishing limitation because Ap-
`ple failed to raise these legal arguments before the Board.
`In the absence of exceptional circumstances, we decline to
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`address the merits of Apple’s proposed constructions. See
`id. at 862–63.
`
`II
`We next consider Apple’s assertion that the Board’s de-
`termination was unsupported by substantial evidence. Ap-
`ple first argues that, under its proposed construction of the
`establishing limitation, the Board’s finding that Ahonen
`fails to disclose the establishing limitation is unsupported
`by substantial evidence. But since we do not consider Ap-
`ple’s new claim construction arguments on appeal, we need
`not consider the merits of arguments that depend on the
`adoption of those constructions.
`Apple also contends that the Board erred by using a
`truncated obviousness analysis. Apple argues that the
`Board merely identified a timing difference between Aho-
`nen and the claims and ended its analysis without consid-
`ering whether that difference was a predictable variation.
`Apple argues that the claims were a trivial variation of the
`prior art, the result of a routine design choice, and a choice
`between two well-known options. Apple states that “a pa-
`tent can be obvious in light of a single prior art reference if
`it would have been obvious to modify that reference to ar-
`rive at the patented invention.” Appellant’s Br. at 38 (cit-
`ing Monsanto Tech. LLC v. E.I. DuPont de Nemours & Co.,
`878 F.3d 1336, 1346 (Fed. Cir. 2018)). MPH counters that
`Apple failed to raise these obviousness theories before the
`Board.
`We agree with MPH. First, Apple’s underdeveloped ar-
`gument that the Board erred by conducting a truncated
`analysis is not persuasive. Apple fails to identify any par-
`ticular error made by the Board in considering the differ-
`ences between the claims and the prior art. The Board
`determined that the claim language “tethers the timing of
`registering the connection as an active connection to when
`the secure connection is formed,” Decision, 2020 WL
`5900607, at *7, and that “Ahonen fails to teach that the
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`APPLE INC. v. MPH TECHNOLOGIES OY
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`first secure connection is registered as being an active con-
`nection when the first secure connection is formed,” id. at
`*8. Although Apple argues that the Board did not suffi-
`ciently consider differences between the claims and the
`prior art, Apple’s generalized accusations are not enough
`to identify reversible error. Apple’s disagreement with the
`Board’s interpretation of Ahonen does not amount to a
`demonstration that the Board failed to conduct a proper
`obviousness analysis.
`Second, Apple argues for the first time that it would
`have been trivial to modify Ahonen to incorporate the
`claimed activation timing. Before the Board, Apple argued
`that Ahonen “explicitly teaches” the establishing limita-
`tion. See id. In its petition, Apple stated that “[t]he ’302
`patent presents a trivial solution to [a] problem that was
`already well-known,” but argued that “Ahonen . . . explic-
`itly disclosed this approach.” J.A. 42–43 (emphasis
`added). Apple did not present a single reference obvious-
`ness ground to the Board; thus, Apple’s arguments are un-
`timely. Again, we decline to consider obviousness theories
`that are raised for the first time on appeal.
`CONCLUSION
`We have considered Apple’s remaining arguments, but
`we find them unpersuasive. Accordingly, we affirm the
`Board’s final written decision upholding the patentability
`of the claims of the challenged patent.
`AFFIRMED
`
`