By Eric Schweibenz and John Presper
On February 18, 2015, the U.S. Court of Appeals for the Federal Circuit issued a decision affirming the International Trade Commission's ("the Commission") final determination of no violation of Section 337 in InterDigital Commc'ns, Inc. et al. v. Int'l Trade Comm'n (2014-1176).  This was an appeal by Complainants InterDigital Communications, Inc., InterDigital Technology Corporation, and IPR Licensing, Inc. (collectively, "InterDigital") in connection with Certain Wireless Devices with 3G Capabilities and Components Thereof (Inv. No. 337-TA-800).

By way of background, this investigation is based on a July 26, 2011 complaint filed on behalf of InterDigital alleging violation of Section 337 by Respondents Huawei Technologies Co., Ltd., FutureWei Technologies, Inc. d/b/a Huawei Technologies (USA), ZTE Corp., ZTE (USA) Inc., and Nokia (collectively, "Respondents") in the importation and/or sale of certain wireless devices with 3G capabilities and components thereof that infringe one or more claims of several U.S. patents.  See our July 28, 2011 and August 29, 2011 posts for more details on the complaint and notice of investigation, respectively.

On February 19, 2014, the Commission determined to affirm, with modifications, the ALJ's finding of no violation of Section 337.  Specifically, the Commission determined to affirm, with modifications, the ALJ's finding that the accused products do not infringe the asserted claims of U.S. Patent Nos. 7,706,830 and 8,009,636 ("the Power Ramp-Up Patents") and U.S. Patent Nos. 7,502,406 and 7,706,332 ("the Power Control Patents").  In addition, the Commission adopted without opinion the ALJ's finding that U.S. Patent Nos. 7,616,970 ("the '970 patent"), 7,970,127 and 7,536,013 are invalid over the prior art.  See our February 26, 2014 post for more details on the Commission's final determination.  On appeal, InterDigital challenged the aforementioned findings by the Commission.

In its decision, the Federal Circuit affirmed the Commission's construction of the term "successively sends [or sent] transmissions" in the Power Ramp-Up Patents and the corresponding finding of no infringement.  The court disagreed with InterDigital's arguments that the Commission improperly limited this term to mean a subscriber unit that "transmits to the base station, one after the other, codes that are shorter than a regular length code" to initiate communication, and that such short codes "are neither modulated with data, nor used to modulate data."  First, the court was unpersuaded by InterDigital's assertion that the Commission relied on statements in the specification concerning only a preferred embodiment, noting that "the entire invention is described by reference to a preferred embodiment" and that "the summary statements about 'short codes' in the Abstract and Summary of the Invention – where full explanations of the term are not expected – are [not] sufficient to justify a broader reading of short codes."  Second, the court rejected InterDigital's argument that the Commission's construction improperly excludes an express preferred embodiment disclosed in U.S. Patent No. 5,799,010 which the Power Ramp-Up Patents incorporate by reference, finding that "InterDigital's argument hinges on conclusory statements about what the '010 patent discloses, and InterDigital fails to properly develop or support those conclusions."  Third, the court did not reach InterDigital's argument that "[t]he Commission's supporting citations indicate that it also reasoned that the short codes cannot carry data because that would purportedly make the successively sent transmissions unrecognizable to the base station, rendering the system inoperable," concluding that "InterDigital's position merely undermines unnecessary support for the Commission's holding" which stands without this support.  Fourth, the court rejected InterDigital's claim differentiation argument as relying on related patents not at issue in this case whose claims are "distinguishable in other ways."

The Federal Circuit likewise affirmed the Commission's construction of the term "power control bit" in the Power Control Patents and the corresponding finding of no infringement.  The court disagreed with InterDigital's arguments that the Commission improperly limited this term to single-bit power control commands.  First, the court found InterDigital's claim differentiation argument unpersuasive since it "is comparing two independent claims and not dependent claims with the claims from which they depend," and because the claims "are sufficiently differentiated by requiring a series of single-bit power control commands, and therefore need not rely on the inclusion of multi-bit power control commands for differentiation."  The court also concluded that the plain language of the claims shows that "multi-bit power commands were not encompassed within the scope of those claims, even where a series of power control bits is referenced."  Second, the court rejected InterDigital's assertion that "the portions of the specifications relied on by the Commission relate only to the preferred embodiment" because, like the Power Ramp-Up Patents, "the entire invention 'has been described in terms of the exemplary embodiment.'"  Further, "and most importantly, the language of the excerpts shows that the concept of single-bit power control commands is not limited to preferred embodiments."  Finally, the court rejected InterDigital's argument that a skilled artisan would have understood the term "power control bit" in the same way as an industry standard under which it "can be represented by multiple symbols and, in turn, multiple underlying bits," noting InterDigital's failure to provide any supporting intrinsic evidence.

Regarding the '970 patent, the issue on appeal was the construction of the term "a plurality of physical layer channels are available for assignment for communication with the cellular network."  The ALJ had adopted InterDigital's proposed construction of "two or more physical layer channels allocable by the subscriber unit for data communication."  InterDigital argued, however, that the ALJ improperly modified the construction during the obviousness analysis by equating "allocation" with "use," and that had the ALJ not done so the claims would not have been held obvious.  The court found this argument unpersuasive since it was InterDigital's own expert who equated "allocation" and "use."