Case: 20-1442 Document: 21 Page: 1 Filed: 07/15/2020
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`2020-1442
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`United States Court of Appeals
`for the Federal Circuit
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`BARKAN WIRELESS IP HOLDINGS L.P.,
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`Appellant,
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`– v. –
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`UNIFIED PATENTS, LLC,
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`Appellee.
`
`On Appeal from the United States Patent and Trademark Office
`Case No. IPR2018-01186
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`NON-CONFIDENTIAL BRIEF FOR APPELLANT
`BARKAN WIRELESS IP HOLDINGS L.P.
`
`
`
`MICHAEL F. HEIM
`R. ALLAN BULLWINKEL
`BLAINE A. LARSON
`HEIM, PAYNE & CHORUSH LLP
`1111 Bagby, Suite 2100
`Houston, Texas 77002
`(713) 221-2000
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`Counsel for Appellant
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`COUNSEL PRESS, LLC
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` (888) 277-3259
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`MemoryWeb Ex. 2010
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`Case: 20-1442 Document: 21 Page: 2 Filed: 07/15/2020
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`FORM 9. Certificate of Interest
`
`Form 9 (p. 1)
`July 2020
`
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`CERTIFICATE OF INTEREST
`
`Case Number
`
`Short Case Caption
`
`Filing Party/Entity
`
`20-1442
`Barkan Wireless IP Holdings v. Unified Patents, LLC
`Barkan Wireless IP Holdings, L.P, Appellant
`
`Instructions: Complete each section of the form. In answering items 2 and 3, be
`specific as to which represented entities the answers apply; lack of specificity may
`result in non-compliance. Please enter only one item per box; attach
`additional pages as needed and check the relevant box. Counsel must
`immediately file an amended Certificate of Interest if information changes. Fed.
`Cir. R. 47.4(b).
`
`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
`
`July 15, 2020
`Date: _________________
`
`Signature:
`
`Name:
`
`/s/ Michael F. Heim
`Michael F. Heim
`
`i
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`Case: 20-1442 Document: 21 Page: 3 Filed: 07/15/2020
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`FORM 9. Certificate of Interest
`
`Form 9 (p. 2)
`July 2020
`
`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`
`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`
`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`
`Provide the full names of
`all entities represented
`by undersigned counsel in
`this case.
`
`Provide the full names of
`all real parties in interest
`for the entities. Do not
`list the real parties if
`they are the same as the
`entities.
`
`Provide the full names of
`all parent corporations
`for the entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
`
`None/Not Applicable
`
`None/Not Applicable
`
`X
`
`None/Not Applicable
`
`Barkan Wireless IP
`Holdings L.P.
`
`Barkan GP Inc.
`
`Additional pages attached
`
`ii
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`Case: 20-1442 Document: 21 Page: 4 Filed: 07/15/2020
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`FORM 9. Certificate of Interest
`
`Form 9 (p. 3)
`July 2020
`
`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already
`entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`
`Additional pages attached
`None/Not Applicable
`Armond Wilson LLP Douglas R. Wilson Michelle Armond
`
`5. Related Cases. Provide the case titles and numbers of any case known to be
`pending in this court or any other court or agency that will directly affect or be
`directly affected by this court’s decision in the pending appeal. Do not include the
`originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
`R. 47.5(b).
`
`Additional pages attached
`None/Not Applicable
`C.A. No. 2:19-cv-00336-JRG Barkan Wireless IP Holdings, L.P. v Sprint Corp.,et al.;
`U.S. District Court for the Eastern District of Texas (Marshll Division )
`
`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
`X
`
`Additional pages attached
`
`None/Not Applicable
`
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`Case: 20-1442 Document: 21 Page: 5 Filed: 07/15/2020
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`
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`TABLE OF CONTENTS
`
`The Board committed legal error in its finding that
`
`The Board applied an unduly restrictive
`interpretation of the RPI requirement,
`
`CERTIFICATE OF INTEREST .................................................................. i
`TABLE OF CONTENTS ........................................................................... iv
`TABLE OF AUTHORITIES ..................................................................... vii
`STATEMENT OF RELATED CASES ...................................................... ix
`JURISDICTIONAL STATEMENT ............................................................ 1
`STATEMENT OF THE ISSUES ................................................................ 2
`I.
`STATEMENT OF THE CASE .......................................................... 3
`A.
`Statement of Facts ................................................................... 4
`1. Unified Patents, LLC ...................................................... 4
`2.
`State of the Art ................................................................ 7
`3.
`The ’284 Patent Invention .............................................. 8
`II.
`SUMMARY OF ARGUMENT ......................................................... 10
`III. ARGUMENT .................................................................................... 14
`Standards of Review .............................................................. 14
`A.
`B.
`Unified disclosed all real parties in interest. ........................ 14
`1.
`The Board’s Institution Decision violated AIT ............ 16
`a.
`which resulted in legal error ............................... 16
`b.
`money to Unified for post-grant challenges ....... 19
`c.
`by no evidence. ..................................................... 25
`
`The Board ignored Barkan’s evidence
`establishing that the litigation defendants
`were members of Unified, and had paid
`
`The Board relied on unsupported
`statements by Unified that were backed
`
`
`
`iv
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`
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`2.
`
`The Board exacerbated its misapplication of
`
`The Board applied a “no harm, no foul”
`
`The Board ignored the nature of
`Petitioner Unified as a non-practicing IPR
`
`The Board ignored evidence that Unified’s
`
`AIT in the Final Written Decision ............................... 28
`a.
`test ........................................................................ 29
`b.
`assertion entity .................................................... 34
`c.
`settlements are controlled by members .............. 36
`C.
`interpreting “regulate data flow” .......................................... 38
`D.
`unreasonably broad ................................................................ 42
`IV. CONCLUSION ................................................................................ 45
`
`The Board ignored the claim context when
`
`The Board’s interpretation of “unique identity” is
`
`
`CONFIDENTIAL MATERIAL OMITTED
`The material omitted on page 5 describes: (1) the business operations of
`Appellee; (2) Appellee's members and fees paid for such membership; and
`(3) the contents of internal documents shared between Appellee and its
`members.
`The material omitted on page 6 describes: (1) Appellee's budget; and (2)
`the contents of internal documents shared between Appellee and its
`members.
`The material omitted on page 7 describes the contents of internal
`documents shared between Appellee and its members.
`The material omitted on page 10 describes the business operations of
`Appellee.
`The material omitted on page 11 describes: (1) Appellee's members; and
`(2) Appellee's budget.
`The material omitted on page 15 describes Appellee's members.
`The material omitted on page 18 describes Appellee's members.
`The material omitted on page 20 describes: (1) the business operations of
`Appellee; (2) Appellee's budget; (3) Appellee's members and fees paid for
`
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`such membership; and (4) the contents of internal documents shared
`between Appellee and its members.
`The material omitted on page 21 describes: (1) the contents of internal
`documents shared between Appellee and its members; (2) and Appellee's
`members.
`The material omitted on page 22 describes: (1) the business operations of
`Appellee; (2) Appellee's budget; and (3) Appellee's members.
`The material omitted on page 23 describes Appellee's members.
`The material omitted on page 24 describes Appellee's budget and
`members.
`The material omitted on page 25 describes Appellee's budget.
`The material omitted on page 26 describes Appellee's business
`operations.
`The material omitted on page 27 describes Appellee's business
`operations.
`The material omitted on page 32 describes Appellee's budget.
`The material omitted on page 34 describes Appellee's members and
`budget.
`The material omitted on page 35 describes Appellee’s budget.
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`Case: 20-1442 Document: 21 Page: 8 Filed: 07/15/2020
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases:
`Applications in Internet Time, LLC v. RPX Corp.,
`897 F.3d 1336 (Fed. Cir. 2018) ............................................... passim
`Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc.,
`IPR2013-00453, 2015 Pat. App. LEXIS 13021
`(PTAB Jan. 6, 2015) ........................................................................ 31
`Cisco Sys., Inc. v. Hewlett Packard Enter. Co.,
`No. IPR2017-01933, 2018 Pat. App. LEXIS 1976
`(PTAB Mar. 16, 2018)...................................................................... 34
`Flanders & Medeiros, Inc. v. Bogosian,
`65 F.3d 198 (1st Cir. 1995) ......................................................... 37-38
`Gen. Elec. Co. v. Transdata, Inc.,
`IPR2014-1559 (PTAB Apr. 15, 2015) .............................................. 38
`In re Gartside,
`203 F.3d 1316 (Fed. Cir. 2000) ....................................................... 14
`JTEKT Corp. v. GKN Automotive Ltd.,
`898 F.3d 1217 (Fed. Cir. 2018) ....................................................... 28
`McMillion v. Rash Curtis & Assocs.,
`No. 4:16-CV-3396, 2017 WL 6033736
`(N.D. Cal. Apr. 18, 2017) ................................................................. 38
`Microsoft Corp. v. Proxyconn, Inc.,
`789 F.3d 1292 (Fed. Cir. 2015) ....................................................... 14
`PPC Broadband, Inc. v. Corning Optical Communs. RF, LLC,
`815 F.3d 747 (Fed Cir. 2016) .......................................................... 39
`Proppant Express Investments, LLC v. Oren Techs., LLC,
`IPR2017-01917 (PTAB Feb. 13, 2019) ....................................... 32-33
`RPX Corp. v. Applications in Internet Time, LLC,
`IPR2015-01750 (PTAB Dec. 28, 2016) ............................................ 16
`
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`Teva Pharmaceuticals U.S.A., Inc. v. Sandoz, Inc.,
`135 S. Ct. 831 (2015) ....................................................................... 14
`Worlds, Inc. v. Bungie, Inc.,
`903 F.3d 1237 (Fed. Cir. 2018) ........................................... 29, 30, 31
`
`
`Statutes & Other Authorities:
`28 U.S.C. § 1295(a)(4)(A) ............................................................................ 1
`35 U.S.C. § 141(c) ........................................................................................ 1
`35 U.S.C. § 311.......................................................................................... 29
`35 U.S.C. § 312.................................................................................... 10, 15
`35 U.S.C. § 312(a) ..................................................................................... 16
`35 U.S.C. § 312(a)(2) ..................................................................... 29, 30, 33
`35 U.S.C. § 314............................................................................................ 1
`35 U.S.C. § 315.......................................................................................... 29
`35 U.S.C. § 315(b) ..................................................................................... 16
`35 U.S.C. § 315(e) ..................................................................................... 32
`35 U.S.C. § 318(a) ....................................................................................... 1
`35 U.S.C. § 319............................................................................................ 1
`37 C.F.R. § 42.108 ....................................................................................... 1
`Office Patent Trial Practice Guide,
`77 Fed. Reg. 48,756 (2012) .............................................................. 38
`
`
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`
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`STATEMENT OF RELATED CASES
`
`Pursuant to Federal Circuit Rule 47.5(a), appellant states:
`(a) No appeal in or from this administrative judicial proceeding was
`previously before this or any other appellate court.
`(b) The following case pending in the U.S. District Court for the
`Eastern District of Texas involves certain claims of U.S. Patent
`No. 8,014,284 not currently at issue in this appeal: Barkan
`Wireless IP Holdings L.P. v. Sprint Corp, et. al, No. 2:19-cv-336-
`JRG (E.D. Tex. Oct. 14, 2019). The pending case also involves a
`different claim construction standard than the “broadest
`reasonable interpretation” standard applied in the course of the
`current IPR proceeding.
`
`
`
`
`
`
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`JURISDICTIONAL STATEMENT
`
`The Board asserted jurisdiction under 35 U.S.C. § 314 and issued
`the Institution Decision pursuant to 37 C.F.R. § 42.108. Appx1762,
`Appx1802. The Board asserted jurisdiction under 35 U.S.C. § 318(a) and
`issued the Final Written Decision. Appx1-2. Barkan Wireless IP Holdings
`L.P. timely filed a notice of appeal on January 31, 2020, which was
`received and docketed by the Court on February 6, 2020. Dkt. 1. This
`Court has
`jurisdiction of this appeal pursuant to 28 U.S.C.
`§ 1295(a)(4)(A), 35 U.S.C. § 319, and 35 U.S.C. § 141(c).
`
`
`
`
`
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`STATEMENT OF THE ISSUES
`
`1. Whether the Board failed to apply the proper test from this
`Court’s AIT decision in determining that Samsung and Verizon
`were not real parties in interest to the Unified IPR.
`2. If the Board failed to apply the proper test, whether the great
`weight of the evidence shows that Samsung and Verizon were
`real parties in interest to the Unified IPR.
`3. Whether the Board failed to properly construe “regulate data
`flow” in claims 1, 2 and 3, and as a result, found those claims
`unpatentable based on the Farris reference which fails to
`disclose any regulation of data flow.
`4. Whether
`the Board adopted an unreasonably broad
`interpretation of “unique identity” in claims 6-8 and 14,
`permitting an identity that does not correspond to the claimed
`gateway.
`
`
`
`
`
`
`
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`
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`I. STATEMENT OF THE CASE
`
`On June 1, 2018, Unified Patents Inc. (“Petitioner,” “Appellee,” or
`“Unified”) filed a Petition for Inter Partes Review of United States Patent
`No. 8,014,284. Appx171-245. Barkan Wireless IP Holdings L.P. (“Patent
`Owner,” “Appellant,” or “Barkan”) filed a preliminary response on
`September 10, 2018. Appx1111-1173. At Unified’s request, the Board
`then granted Unified leave to file a reply to the Preliminary Response
`limited to the topic of real parties in interest (“RPI”). Appx1247-1250. The
`Board also granted Barkan leave to file a Sur-Reply limited to the same
`topic. Id. On September 28, 2018, Unified filed its reply. Appx1269-1286.
`On October 12, 2018, Barkan filed its sur-reply. Appx1423-1445.
`The Board subsequently instituted an inter partes review of ’284
`Patent claims 1 through 21 based on seven grounds involving one or more
`of the following references: (1) U.S. Patent No. 6,721,306 (“Farris”); (2)
`U.S. Patent No. 6,806,813 (“Cheng”); (3) WO 99/27729 (“Lucidarme”); (4)
`U.S. Patent No. 6,760,778 (“Nelson”); and (5) U.S. 6,690,929 (“Yeh”).
`Appx1761-1803. Barkan filed its Response on March 7, 2019; Unified
`filed a Reply on June 7, 2019; and Barkan filed a Sur-Reply on July 8,
`2019. Appx1880-1939 (Response); Appx2411-2442 (Reply); Appx2721-
`2745 (Sur-Reply).
`On September 4, 2019, the Board conducted a hearing, and it issued
`a Final Written Decision and ordered that: (1) claims 1-3, 9, 10, 16, and
`18 are anticipated by Farris; (2) claims 5, 12, 13, and 17 are obvious in
`
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`view of Farris and Cheng; (3) claims 6-8 and 14 are obvious in view of
`Farris and Lucidarme; and (4) claims 4, 11, 15, and 19-21 are patentable.1
`Appx1-49. On January 31, 2020, Barkan timely filed a notice of appeal.
`Appx3008-3012.
`
`A. Statement of Facts
`
`1. Unified Patents, LLC
`
`Unified is an entity that files post-grant review challenges to
`patents that have been asserted against its members. Unified charges its
`members a fee in return for filing challenges to these patents. Unified
`does not engage in any commercial endeavors—it does not make, use, or
`sell products commercially—and thus it is immune from any patent
`infringement charges relative to the patents it challenges.
`Unified regularly promotes itself to the public and its member
`companies as an IPR-filing entity. According to its literature, Unified
`seeks to deter non-practicing entity (NPE) patent litigation by protecting
`“technology sectors” that may be impacted by such NPE assertions of
`
`
`
`4
`
`
`
` 1
`
` The Introduction section of the Board’s Final Written Decision contains
`a typographical error in its list of claims held unpatentable. Compare
`Appx2 with Appx46.
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`patents. Appx1406. Unified’s primary deterrence activity is filing IPRs.
`As detailed below, Unified’s activities are funded by member companies.
`Unified’s source of funding for its activities is annual subscription
`fees paid by member companies. See, e.g., Appx1406 (
`
`Appx1407 (“
`
`”);
`
`
`
`”);
`;
`annual membership fee of
`Appx1381 (showing
`;
`Appx1400 (showing Verizon’s annual membership fee of
`;
`Appx1676 (showing Google’s annual membership fee of
`for a single
`Appx1688 (showing a proposed membership fee of
`zone). And, the funds provided by a member can only be used to support
`deterrence activities within the zone to which the member has
`subscribed. See Appx1573.
`to
`Unified provides
`deterrence activities within the zone to which a
`Appx1617-1619; Appx1508-1544. These
`Unified’s
`
`to summarize its
`See
`show that almost all
`In the
` for example, the Summary slide breaks
` into two categories:
`
`. Appx1516. Mr. Jakel, the Chief
`
`5
`
`the
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`
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`Executive Officer and co-founder of Unified, confirmed that this
` figure related to all of Unified’s technology zones. See
`Appx1626. Unified’s
`show that approximately
`of its
`is allocated to IPR activity. See Appx1516 (showing that
`ut of a
`of
` is spent on deterrence activities,
`which are IPRs); Appx1676 (showing that
` out of a
`of
`is spent on deterrence activities, which are IPRs).
`Unified heavily promotes these IPR-related activities. For example,
`any time Unified files an IPR or has an announcement regarding an IPR,
`it sends a notice to all of its members. See Appx1630-1631 (detailing
`notices to members); Appx1545 (notice of filing of the instant IPR);
`Appx1689 (Hypermedia IPR); Appx1691 (Mobility Workx IPR). Notices
`also are sent to members for other activities relating to an IPR, such as
`institution, settlement, or abandonment by the patent owner. See, e.g.,
`Appx1690 (Iron Oak IPR institution); Appx1692 (MONKEYmedia IPR
`abandonment); Appx1693 (Pen One IPR settlement); Appx1694 (Silver
`State
`IPR abandonment); Appx1695
`(Uniloc
`IPR
`institution).
`Additionally, these same notices are posted to Unified’s website. See
`Appx1696 (table listing each Exhibit notice and its corresponding URL).
`Unified highlights its IPR-related activities, not only to its members, but
`to the public as well.
`that Unified provides to
`The
`summarize its deterrence activities within the zone or zones to
`
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`
`
` See Appx1617-1619; Appx1508-1544. These
`which a
`highlight Unified’s IPR-filing activity. For example, the overview
`states that Unified is a
`Appx1510; Appx1622 (confirming that
`relates to IPRs).
`
`in an
`
`2. State of the Art
`
`Cellular systems use geographically distributed base stations to
`provide cellular subscribers with a radio frequency wireless link to the
`cellular wired network. See Appx162 at 1:29-30. Each base station
`establishes a “cell” that supports the users within the area of the base
`station. These conventional base stations typically use relatively high
`transmit power “to overcome propagation losses in order to achieve a
`reliable link.” Appx162 at 1:31-33. Each cell can only support a certain
`number of users, so as areas become more densely populated, more base
`stations (with correspondingly smaller cell coverage areas) must be
`added by the cell phone carriers. Appx162 at 1:37-40. The base stations
`are connected to and controlled by the mobile operator’s carrier network,
`and the operator controls and manages the mobile traffic through its
`network.
`Installing cellular base stations in highly populated areas can
`present challenges to the network providers. Base stations, which are
`designed to simultaneously handle numerous calls to and from mobile
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`phones in a large geographical area around the base station, employ
`large, expensive equipment, such as cell tower antennas and high-power
`transmitters. The high-power transmitters typically employed by these
`base stations create radiation that may be harmful to people. Appx162 at
`1:33-34. Additionally, the high transmit power may also interfere with
`nearby electronic equipment. Appx162 at 1:34-35. Finally, base stations
`require a large space to accommodate the necessary equipment, including
`tall transmitting antennas. Finding such large spaces in densely
`populated areas can be both difficult and expensive compared to that of
`less populated areas, creating significant financial burdens on a network
`carrier seeking to provide reliable cellular service within densely
`populated areas. See Appx162 at 1:44-50. As detailed below, the ’284
`Patent inventions address many of the problems that arise when
`expanding a cellular network.
`
`3. The ’284 Patent Invention
`
`The ’284 Patent relates to the expansion of cellular networks in
`areas in which signal coverage is weak or nonexistent by using
`coordination centers and existing network infrastructure—such as cable
`television, internet, or wired telephone connections—to route cellular
`communications through add-on base stations in lieu of expensive cell
`phone towers. See Appx162 at 2:10-20. It discloses systems, devices, and
`methods for expanding cellular coverage by enabling customers to easily
`
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`
`install and use a miniature, low-power base station. These low-power
`base stations do not connect directly to the carrier’s private network, but
`rather use the Internet to connect to and interface with the carrier’s
`private network. Once connected, these base stations constitute an
`integral part of the mobile network, allowing them to facilitate cellular
`mobile calls as if these base stations were connected directly to the mobile
`carrier network like traditional base stations.
`The ’284 inventions yield substantial benefits for both consumers
`and telecommunications providers. Consumers can benefit from
`increased cell strength, reduced cell phone battery consumption,
`diminished radiation exposure, higher voice communication quality, the
`ability to place calls on a mobile device from indoor locations that might
`otherwise be inaccessible, and ease of installation. Telecommunications
`providers benefit from access to additional consumers, increased capacity
`as subscribers are offloaded from cell phone towers to existing network
`infrastructure, and reduced expenditures due to the use of the low-power
`add-on base stations—which may be purchased and installed by
`consumers—in lieu of more expensive traditional network infrastructure.
`
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`II. SUMMARY OF ARGUMENT
`
`The Board’s Final Written Decision should be reversed. The Board
`erred in declining to require compliance with the “real party in interest”
`requirements of 35 U.S.C. § 312, as construed by the law of this Circuit.
`The Board’s decision should also be reversed because it erroneously
`interpreted and applied two claim terms.
`First, the Board’s “real party in interest” conclusions were error. The
`Board refused to require Unified Patents to identify all “real parties in
`interest,” an unwaivable statutory requirement for even considering the
`IPR petition. In its Institution Decision, the Board embraced the wrong
`test for determining who the “real parties in interest” were. Moreover, in
`response to Patent Owner highlighting this error in its post-institution
`Response—and seemingly in recognition of its erroneous application of
`the “real party in interest” rule—the Board elected to apply a completely
`different test for determining real parties in interest. That “no harm, no
`foul” rule has no basis in Federal Circuit precedent.
`Moreover, the Board’s determination that failure to identify
`Samsung and Verizon as real parties in interest was “not harmful” is
`meritless. It makes a mockery of the statutory “real party in interest”
`requirement in 35 U.S.C. § 312 to permit IPR-filing agents to disavow a
`connection to the companies on whose behalf they file an IPR merely
`because the resources for funding the IPR come from a
` instead of
`from a quid pro quo transaction with the entity for which they work.
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`The evidence presented to the Board showed that Unified Patents
`does little more than file IPRs for member companies like
`and
`Verizon to insulate them from district court litigation; and that in this
`very case, Unified Patents only filed its petitions when Samsung and
`Verizon were sued. To be clear, virtually all of Unified’s
`is dedicated to filing IPRs on behalf of its member
`companies. And the source of that funding is the fees companies like
`nd Verizon pay it. In fact, as relevant here, payments from
`and Verizon alone accounted for a
`
` even though Unified has many other members.
`Unified’s contention that it acts without input from members is
`contradicted by substantial evidence showing it typically dismisses IPRs
`when related litigations involving Unified members are settled. If
`Unified were really acting alone, that would not be the case.
`Second, the Board’s findings should also be reversed on the merits
`regarding its erroneous interpretation and application of two claim
`terms: “regulat[e/ing] data flow” and “unique identity.”
`All independent claims include either a “regulate data flow” (claims
`1 and 2) or “regulating data flow” (claim 3) term, and the claimed
`regulation of data flow is between “the mobile device and the [packet-
`based] data network.” The Board erroneously determined that “regulate
`data flow” could be satisfied simply by allocating an RF channel on the
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`radio frequency link over which the mobile device communicates with the
`claimed gateway. This erroneous construction is reviewed de novo.
`One of skill in the art would understand the claim context to show
`that the “regulating of data flow” occurs between the mobile device and
`packet-based data network by controlling the rate or quantity of data
`flowing “through the gateway.” The Board ignored expert testimony on
`this very point. The Board also ignored the fact that the Patent Owner
`distinguished prior art during prosecution because the reference failed to
`disclose “regulating data
`flow” through simply allocating and
`maintaining an RF channel.
`A primary focus of the ’284 Patent invention is that it provides an
`interface, or a link, between an RF network used to communicate with
`mobile devices and a packet-based data network used to interconnect
`other base stations and telephone operator networks. Despite expert
`testimony on how one of skill in the art would read “regulating data flow”
`and prosecution history disclaimer of art that purportedly discloses
`“regulating data flow” by allocating an RF channel, the Board held that
`Farris satisfies the “regulating data flow” requirement through its
`allocation of an RF channel. This finding should be reversed as to all
`asserted claims.
`The “unique identity” term appears in claims 6-8 and 14 of the ’284
`Patent, and it relates to the identity of the claimed gateway. The Board
`erroneously determined that the “unique identity” could correspond to
`
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`the identity of a cell phone customer instead of the claimed gateway. This
`finding divorces the claimed “identity” from the base station to which it
`relates. Such an interpretation is unreasonably broad and should be
`reversed.
`
`
`
`
`
`
`
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`III. ARGUMENT
`
`A. Standards of Review
`
`This Court reviews the Board’s conclusions of law de novo and its
`findings of fact for substantial evidence. Microsoft Corp. v. Proxyconn,
`Inc., 789 F.3d 1292, 1297 (Fed. Cir. 2015) (citing In re Gartside, 203 F.3d
`1305, 1316 (Fed. Cir. 2000)). The Board’s ultimate claim constructions
`are reviewed de novo, while any underlying factual determinations
`involving extrinsic evidence are reviewed for substantial evidence. Id.
`(citing Teva Pharmaceuticals U.S.A., Inc., v. Sandoz, Inc., 135 S. Ct. 831,
`841–42 (2015)).
`
`B. The Board committed legal error in its finding that Unified
`disclosed all real parties in interest.
`
`The Board erred in finding that neither Samsung nor Verizon were
`real parties in interest to the IPR Petition filed by Unified Patents. In its
`Institution Decision (Appx1761-1803), the Board applied the wrong test
`(a strict “control and fund test”) and “determine[d] that Petitioner carried
`its burden to establish that it properly identified itself as the sole real
`party in interest.” Appx1776. Barkan highlighted this error in its
`response. See Appx1897-1907. In response, the Board compounded its
`error by creating a new “no harm, no foul” test that is retrospective in
`nature and completely unsupported by AIT