Cisco Systems, Inc. v. Lee ( 2014 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    CISCO SYSTEMS, INC.,
    Appellant,
    v.
    MICHELLE K. LEE, Deputy Director, United States
    Patent and Trademark Office,
    Appellee,
    v.
    TELES AG INFORMATIONSTECHNOLOGIEN,
    Cross-Appellant.
    ______________________
    2012-1513, -1514
    ______________________
    Appeals from the United States Patent and Trade-
    mark Office, Board of Patent Appeals and Interferences,
    in Reexamination No. 95/001,001.
    -------------------------
    IN RE TELES AG
    INFORMATIONSTECHNOLOGIEN AND SIGRAM
    SCHINDLER BETEILIGUNGSGESELLSCHAFT
    MBH
    ______________________
    2012-1297
    2                                CISCO SYSTEMS, INC.   v. LEE
    ______________________
    Appeal from the United States Patent and Trademark
    Office, Board of Patent Appeals and Interferences, in
    Reexamination No. 90/010,017.
    ______________________
    Decided: February 21, 2014
    ______________________
    J. ANTHONY DOWNS, Goodwin Procter LLP, of Boston,
    Massachusetts, argued for appellant Cisco Systems, Inc.
    With him on the brief were LANA S. SHIFERMAN and
    KENNETH E. RADCLIFFE.
    AMY J. NELSON, Associate Solicitor, United States Pa-
    tent and Trademark Office, of Alexandria, Virginia,
    argued for appellee. With her on the brief were NATHAN
    K. KELLEY,      Deputy    Solicitor,   and    SCOTT C.
    WEIDENFELLER, Associate Solicitor.      Of counsel was
    SYDNEY O. JOHNSON, JR., Associate Solicitor.
    MICHAEL D. KAMINSKI, Foley & Lardner LLP, of
    Washington, DC, argued for appellant and cross appellant
    Teles AG Informationstechnologien, et al. With him on
    the brief were HOWARD N. SHIPLEY, GEORGE E. QUILLIN
    and RYAN A. SCHMID.
    FRANK E. SCHERKENBACH, Fish & Richardson P.C., of
    Boston, Massachusetts, for amicus curiae Power Integra-
    tions in appeal no. 2012-1297. With him on the brief were
    CRAIG E. COUNTRYMAN, of San Diego, California, and
    HOWARD G. POLLACK and MICHAEL R. HEADLEY, of Red-
    wood City, California.
    ______________________
    Before DYK, MOORE, and WALLACH, Circuit Judges.
    CISCO SYSTEMS, INC.   v. LEE                                 3
    WALLACH, Circuit Judge.
    Third-party requester Cisco Systems, Inc. (“Cisco”)
    appeals from the Patent Trial and Appeal Board’s
    (“Board”) decision confirming the patentability of claims
    91 and 104 of U.S. Patent No. 7,145,902 (“the ’902 pa-
    tent”). Teles AG Informationstechnologien (“Teles”) 1 cross
    appeals from the Board’s rejections of claims 68, 69, 71,
    75, 77, 79, 82, 84, 87, 90, 92, 95, 98, 100, and 102. This
    court affirms-in-part and reverses-in-part.
    BACKGROUND
    I. The ’902 Patent
    The ’902 patent discloses a method and apparatus for
    transmitting data in a telecommunications network by
    line switching (also referred to as circuit switching) and
    packet switching. ’902 patent col. 1 ll. 19–22. It contem-
    plates transfer of “any type of data,” including “audio
    data, video data or computer files,” 
    id. col. 3
    ll. 45–46, and
    is particularly useful in Internet telephony, 
    id. col. 4
    ll. 3–
    4.    A conventional telephone transmission uses line
    switching, whereas the Internet uses packet switching. A
    line-switching connection has fixed bandwidth and trans-
    fers data continuously and without delay. 
    Id. col. 1
    ll. 46–
    60.    Line-switching connections are costly, however,
    because the connection must be maintained even when no
    data is being transferred. 
    Id. col. 1
    ll. 56–58. Packet
    switching transmits data in data packets. It is less ex-
    pensive, but can cause significant time delays when there
    is a large amount of data to be transmitted. 
    Id. col. 2
    ll.
    18–25.
    1   For convenience, this court will refer to former pa-
    tent owner Teles, even though Sigram Schindler Be-
    teiligungsgesellschaft MbH now owns the ’902 patent.
    4                                 CISCO SYSTEMS, INC.   v. LEE
    The ’902 patent teaches changing over between line
    switching and packet switching during an existing com-
    munication, so that each type of connection can be used
    when it is most beneficial. This is accomplished with
    switches that “allow both line-switching and packet-
    switching, and combine the functions of a line-switch and
    a packet-switch.” 
    Id. col. 3
    ll. 47–50. Such a switch has
    “[(1)] a packeting device for packeting and unpacketing
    data, [(2)] an IP switching device for routing data packets,
    [(3)] a line-switching device for establishing connections
    for switching through data channels[, and (4)] a control
    device which directs incoming data.” 
    Id. col. 3
    ll. 51–55.
    The control device responds to control signals, which can
    be triggered (1) automatically when a packet-switching
    transfer exceeds a certain bandwidth, (2) by a user, or (3)
    by the network management system. 
    Id. col. 3
    ll. 58–63.
    The method is designed to harness both the cost-saving
    benefits of packet switching and the speed and accuracy of
    line switching. 
    Id. col. 3
    ll. 25–39. Importantly, the
    transfers between line switching and packet switching
    occur “without interrupting the connection” between the
    servers. 
    Id. col. 3
    ll. 25–28.
    A telecommunications network according to the ’902
    patent includes multiple switches 7, each of which com-
    prises a packet switch 72 and a line switch 73.
    CISCO SYSTEMS, INC.   v. LEE                             5
    
    Id. Fig. 4.
    Control device 71 produces internal control
    commands to direct data either through packet switch 72
    or line switch 73. 
    Id. col. 8
    ll. 59–65. The network man-
    agement system or a user can use an end terminal or
    another switch to trigger control signals from the control
    device 71. 
    Id. col. 9
    ll. 29–33, 63–66. Alternatively,
    change-over control device 711 (depicted in Figure 4 as
    part of control device 71) monitors the transfer bandwidth
    and can automatically release a control command to
    change the type of transfer. 
    Id. col. 9
    ll. 41–47. For in-
    stance, when the control device 711 detects that packet
    switching is “understepping or exceeding a certain band-
    width and/or in the event of a time delay,” it can change
    over to line switching. 
    Id. Exemplary claim
    68 recites:
    68. Switching apparatus for selectively routing a
    telephone call from a first end terminal to a sec-
    ond end terminal, comprising:
    6                                  CISCO SYSTEMS, INC.   v. LEE
    a device that provides access to a packet switching
    network through which data can be sent for deliv-
    ery to the second end terminal;
    means for transferring first data of the telephone
    call originated by the first terminal through the
    packet switching network for delivery to the sec-
    ond end terminal;
    a device for establishing a connection to a line-
    switching network through which data can be sent
    for delivery to the second end terminal;
    means for transferring second data of the tele-
    phone call originated by the first terminal over
    the connection through the line-switching network
    for delivery to the second end terminal; and
    means responsive to a control signal for changing-
    over from a packet-switching mode of transfer of
    the first data of the telephone call to a line-
    switching mode of transfer of the second data of
    the telephone call without interruption of a call-up
    procedure, wherein said control signal is produced
    by a network management system.
    
    Id. col. 1
    8 l. 58–col. 19 l. 14 (emphasis added to disputed
    limitations). Two dependent claims, 91 and 104 (which
    depend from claims 84 and 100, respectively), also feature
    a multiplexer in the line-switching device “for multiplex-
    ing data of several origin end terminals over a single line
    connection through the line-switching network.” 2 
    Id. col. 2
    1 ll. 38–40; see also 
    id. col. 23
    ll. 6–8 (substantially the
    same, except the connection must be “through the public
    telephone network”).
    2    Claims 84 and 100 cover similar switching appa-
    ratuses, except that claim 100’s packet-switching network
    is limited to the Internet. ’902 patent col. 22 l. 27–29.
    CISCO SYSTEMS, INC.   v. LEE                              7
    II. Prior Art References
    Cisco relied on multiple prior art references in its re-
    quest for inter partes reexamination. Five references are
    most relevant to this appeal: Jonas, 3 Farese, 4 Matsuka-
    wa, 5 Yoshida, 6 and Focsaneanu. 7 The Board found that
    the first four references disclose changing over between
    packet switching and line switching during an existing
    communication. Jonas discloses a system and method of
    transmitting secret and/or critical data over a packet-
    switched network (such as the Internet), and also features
    a line-switched network to “bypass” packet switching
    when necessary. J.A. 11–12.
    Farese teaches a system in which a host computer
    transfers an Integrated Services Data Network (“ISDN”)
    access path between a D-channel (which uses packet
    switching) and a B-channel (which is capable of using line
    switching) during an ongoing host session. 8 Matsukawa’s
    network likewise uses an ISDN in both packet-switching
    and line-switching modes, and teaches changing over to
    line switching when a certain pre-determined time delay
    occurs during the packet-switching connection. Yoshida,
    again, teaches an ISDN network using line and packet
    switching. Yoshida focuses on a Local Area Network
    (“LAN”) with channels B1 and B2, which correspond to
    packet and line switches, respectively. When there is an
    increase in packet data per unit time (resulting in greater
    delays), Yoshida’s channel change signal causes a change
    over to transmission on the line-switching connection.
    3  U.S. Patent No. 6,137,792.
    4  U.S. Patent No. 4,996,685.
    5   U.S. Patent No. 5,598,411.
    6   U.S. Patent No. 5,347,516.
    7   U.S. Patent No. 5,610,910.
    8   ISDN is a data system that enables digital trans-
    mission over the public telephone network.
    8                                  CISCO SYSTEMS, INC.   v. LEE
    The fifth reference, Focsaneanu, discloses a multi-
    service access platform that allows a plurality of comput-
    ers (or other communications equipment) to interface with
    a plurality of networks. Focsaneanu col. 1 ll. 7–14, col. 4
    l. 40–col. 5 l. 12. Focsaneanu also teaches the use of a
    multiplexer to combine multiple signals in a single
    transmission to the network. 
    Id. col. 8
    ll. 24–26, col. 10 ll.
    47–49.
    III. Procedural History
    In 2007, Cisco requested inter partes reexamination of
    claims 36, 37, 41, 54–58, 60–62, 64, 66, 68, 69, 71, 75, 77,
    79, 82, 84, 87, 90–92, 95, 98, 100, 102, 104, and 118–125
    of the ’902 patent. 9 After the U.S. Patent and Trademark
    Office (“PTO”) granted the request, the Examiner rejected
    all but two of the reexamined claims based on anticipa-
    tion, with some claims being anticipated by multiple prior
    art references. The Examiner confirmed the patentability
    of claims 91 and 104, rejecting all of Cisco’s proposed
    obviousness and anticipation rejections. Teles appealed
    the rejections to the Board, and Cisco cross appealed the
    Examiner’s decision to allow claims 91 and 104. The
    Board affirmed in all respects.
    In particular, the Board affirmed the Examiner’s
    claim construction of “network,” as used in claim terms
    “packet-switching network” and “line-switching network.”
    The Board determined the broadest reasonable interpre-
    tation of those terms includes D- and B- channels of
    9   Teles and Cisco are also involved in an infringe-
    ment action in the U.S. District Court for the District of
    Delaware involving, inter alia, the ’902 patent. Cisco
    Sys., Inc. v. Sigram Schindler Beteiligungsgesellschaft,
    C.A. No. 09-232-SLR & No. 09-072-SLR (D. Del.). That
    case is currently stayed pending final decision in this and
    other reexamination proceedings.
    CISCO SYSTEMS, INC.   v. LEE                              9
    ISDN, and rejected Teles’s argument “that the separate
    channels of the ISDN cannot constitute ‘two distinct
    networks.’” J.A. 19. The Board also found unpersuasive
    Teles’s argument that “telephone call” and “real-time
    properties,” as recited in the apparatus claims of the ’902
    patent, require actually making a telephone call or trans-
    ferring data in real time; rather, the Board determined
    the apparatus claims only require a structure capable of
    performing those functions.
    Finally, the Board construed the “means responsive to
    a control signal” limitation in the last paragraph of claim
    68 as a means-plus-function claim. The Board agreed
    with the Examiner that the recited function was “chang-
    ing-over from a packet-switching mode of transfer of the
    first data of the telephone call to a line-switching mode of
    transfer of the second data of the telephone call without
    interruption of a call-up procedure.” J.A. 22 (internal
    quotation marks omitted). The Board determined the
    corresponding structure was the change-over control unit
    711. J.A. 23.
    Based on these claim constructions, the Board af-
    firmed the Examiner’s rejections of claims 68, 69, 71, 75,
    77, 79, 82, 84, 87, 90, 92, 95, 98, 100, and 102 as antici-
    pated by Jonas. Some of these claims were also rejected
    as anticipated by Farese, Matusaka, and Yoshida, alt-
    hough claims 100 and 102 were rejected solely on the
    basis of Jonas. The Board also affirmed the Examiner’s
    decision not to adopt Cisco’s proposed anticipation rejec-
    tions based on Focsaneanu. It determined Focsaneanu
    does not meet the limitation of changing-over between
    packet and line switching during an active communica-
    tion, but instead requires disconnecting the data transfer
    before making such a change.
    10                                CISCO SYSTEMS, INC.   v. LEE
    Finally, the Board affirmed the allowance of claim 91,
    holding it would not have been obvious over Focsaneanu
    in view of Lucent 10 and, inter alia, Jonas or Yoshida, and
    likewise affirmed that claim 104 would not have been
    obvious over the combination of Focsaneanu, Lucent, and
    Jonas. Although Focsaneanu discloses a multiplexer as
    required by claims 91 and 104, the Board found it does
    not disclose a multiplexer that supports changing-over
    between packet switching and line switching during an
    ongoing phone call.
    Cisco filed a timely appeal challenging the Board’s al-
    lowance of claims 91 and 104. Teles cross appealed the
    Board’s rejections. This court has jurisdiction pursuant to
    35 U.S.C. §§ 141 and 144 and 28 U.S.C. § 1295(a)(4)(A).
    DISCUSSION
    On appeal, Teles contests the Board’s constructions of
    “network,” “telephone call,” and “real-time properties.” It
    further argues the Board improperly failed to interpret
    the terms “control signal” and “communications connec-
    tion.” According to Teles, these allegedly incorrect claim
    constructions require reversal of the Board’s rejections
    based on Farese, Yoshida, Matsuwaka, and Jonas. Even
    assuming those constructions are correct, Teles contends
    there is not substantial evidence to support the Board’s
    rejections of claims 100 and 102 as anticipated by Jonas.
    Cisco, in turn, challenges the Board’s decision confirming
    claims 91 and 104. Each argument is addressed in turn.
    I. Standard of Review
    During reexamination, “claims . . . are to be given
    their broadest reasonable interpretation consistent with
    10Lucent Technologies, Lucent Technologies an-
    nounces Internet telepathy servers to put voice, fax, and
    mail on the Internet (Sept. 17, 1996) (“Lucent”).
    CISCO SYSTEMS, INC.   v. LEE                            11
    the specification, and . . . claim language should be read
    in light of the specification as it would be interpreted by
    one of ordinary skill in the art.” In re Am. Acad. of Sci.
    Tech. Ctr., 
    367 F.3d 1359
    , 1364 (Fed. Cir. 2004) (internal
    quotation marks and citation omitted). “‘[C]laim con-
    struction by the PTO is a question of law that we review
    de novo . . . .’” Rambus Inc. v. Rea, 
    731 F.3d 1248
    , 1252
    (Fed. Cir. 2013) (quoting In re Baker Hughes Inc., 
    215 F.3d 1297
    , 1301 (Fed. Cir. 2000)).
    Anticipation under 35 U.S.C § 102 is a question of
    fact. In re Rambus, 
    694 F.3d 42
    , 46 (Fed. Cir. 2012).
    Obviousness under 35 U.S.C. § 103 is a legal conclusion
    based on underlying factual findings, including “[t]he
    scope and content of the prior art” and “whether the prior
    art teaches away from the claimed invention.” In re
    Mouttet, 
    686 F.3d 1322
    , 1330 (Fed. Cir. 2012). The
    Board’s factual findings are reviewed for substantial
    evidence, and questions of law are reviewed without
    deference. 
    Id. at 1330–31.
                     II. Teles’s Cross Appeal
    A. The Board Correctly Construed “Network”
    Exemplary claim 68 recites, inter alia, (1) “a device
    that provides access to a packet switching network,” (2) “a
    device for establishing a connection to a line-switching
    network,” and (3) “means responsive to a control signal for
    changing-over” between the packet-switching network and
    the line-switching network. ’902 patent col. 18 l. 61–col.
    19 l. 11 (emphases added). On appeal, Teles argues the
    packet-switched network and the line-switched network
    must be “two independent and distinct networks.” Teles’s
    Br. 28. Teles maintains the Board therefore erred in
    holding that the D- and B-channels of a single ISDN
    network can constitute packet- and line-switching net-
    works, respectively, because the D- and B-channels are
    12                                 CISCO SYSTEMS, INC.   v. LEE
    part of the same network, not two independent net-
    works. 11
    In holding the claimed packet- and line-switching
    networks can be part of one network, the Board relied on
    the ’902 patent’s statement that it is “‘possible to divide
    up a single coupling network depending, on requirements,
    dynamically into a line-switching network and a packet-
    switching network.’” J.A. 9 (quoting ’902 patent col. 3 ll.
    10–13) (emphasis added). While this statement is made
    in the context of discussing prior art, the rest of the
    specification does not require a narrower meaning.
    Contrary to Teles’s argument that a person of ordinary
    skill “always understands the ISDN to be a single line-
    switching network,” Teles’s Br. 19 (emphasis added), the
    “Summary of the Invention” portion of the ’902 patent
    refers to ISDN’s D-channel as one type of packet-
    switching network, thus confirming that packet switching
    and line switching can take place in one network. See
    ’902 patent col. 4 l. 66–col. 5 l. 2 (describing an example of
    “a packet-switching transfer to the access point” as “e.g.,
    through an ISDN D channel”).
    Teles counters that “[t]he ’902 Patent makes clear
    that two independent and distinct networks are required
    to make up the ‘Packet- and Line-switching Network’: one
    being a packet-switched network, such as the Internet;
    and the other being a line-switched network, such as the
    [public switched telephone network] or ISDN.” Teles’s Br.
    28 (citing ’902 patent col. 7 ll. 49–52). The portion of the
    specification that Teles cites for this proposition, however,
    11 The finding that D- and B-channels in an ISDN
    network can meet the “packet” and “line-switching net-
    work” limitations is necessary to the Board’s anticipation
    findings regarding prior art references Farese, Yoshida,
    and Matsukawa, which disclose changing over between
    packet and line switching in an ISDN network.
    CISCO SYSTEMS, INC.   v. LEE                               13
    refers to only one network: “The switches 7a and 7b[,
    representing a packet switch and a line switch, respec-
    tively,] can be mounted . . . at different points in the
    telecommunications network.” ’902 patent col. 7 ll. 48–49
    (emphasis added). Moreover, the fact that packet switch-
    ing and line switching are “quite different[ ]” from each
    other, 
    id. col. 1
    l. 67–col. 2 l. 3, does not show that two
    separate networks are required.
    Nor is there an unmistakable disavowal of claim
    scope, as Teles argues, in the description that “‘[i]f an
    ISDN network exists, then an ISDN B channel is used as
    the data channel.’” Teles’s Br. 31 (quoting ’902 patent col.
    5 ll. 2–6). This simply describes a preferred embodiment
    in which “the same data channel is used for transferring
    the data packets from the first switch” to both the packet-
    switching network and the line-switching network. ’902
    patent col. 4 ll. 51–60. This embodiment is meant to
    ensure “a larger and fixed bandwidth . . . up to the access
    point [of the packet-switching network],” 
    id. col. 5
    ll. 1–2,
    but does not state that the packet-switching network
    cannot be another channel in the ISDN network. Alt-
    hough “ISDNs are conventionally known as line-switched
    networks,” the Board correctly determined that “the
    networks in the instant claims” can “be read onto an
    ISDN under a broadest reasonable interpretation.” J.A.
    20. This court therefore affirms that the claimed packet-
    switching network and line-switching network includes a
    single telecommunications network with multiple chan-
    nels, such as an ISDN network.
    B. The Board Correctly Construed “Telephone Call” and
    “Data Transfer with Real-Time Properties”
    The contested claims of the ’902 patent require “a tel-
    ephone call” and/or “data transfer with real-time proper-
    ties.” Claim 68, for example, recites a “[s]witching
    apparatus for selectively routing a telephone call,” com-
    prising, inter alia, “means for transferring first data of the
    14                                  CISCO SYSTEMS, INC.   v. LEE
    telephone call” and “means for transferring second data of
    the telephone call.” ’902 patent col. 18 l. 58–col. 19 l. 4
    (emphases added). Claim 84 requires a control device
    that maintains “respective communications connections
    for data transfer with real-time properties.” 
    Id. col. 2
    0 ll.
    63–64 (emphasis added). The Board determined that both
    limitations require only “a structure capable of perform-
    ing the function” of sustaining a telephone call or provid-
    ing real-time properties. J.A. 21 (citing Hewlett-Packard
    Co. v. Bausch & Lomb Inc., 
    909 F.2d 1464
    , 1468 (Fed. Cir.
    1990) (“[A]pparatus claims cover what a device is, not
    what a device does.”)).
    Teles argues the Board should have construed both
    terms to mean “end-terminal-to-end-terminal communica-
    tions connections with a communications time delay of
    less than 0.5 seconds.” Teles’s Br. 40. The proper con-
    struction, according to Teles, must “exclude the transfer of
    anonymous bulk data with unspecified/non-real-time
    delay requirements.” 
    Id. Teles bases
    its argument on the
    portion of the specification stating that “‘[w]ith Internet
    telephony, a cost-conscious caller uses the normal Inter-
    net with approximately 8 kbit/s bandwidth and a time
    delay of 0.5 seconds.’” 
    Id. at 41
    (quoting ’902 patent col. 2
    ll. 19–21).
    This statement is set forth in the “Background of the
    Invention,” and provides context by describing the diffi-
    culties typically associated with packet switching; it does
    not limit the otherwise plain meaning of “telephone call”
    or “data transfer with real-time properties.” Nearby
    portions of the specification further describe “delays . . . of
    considerable significance,” especially when the Internet is
    overloaded. 
    Id. col. 2
    l. 18–25 (“When the Internet is
    overloaded, the time delay of the individual packets
    becomes so great that an acceptable conversation connec-
    tion between telephone partners is no longer possible.”).
    Nor does the specification even mention the 0.5-second
    time delay in the context of line switching. Teles is there-
    CISCO SYSTEMS, INC.   v. LEE                              15
    fore incorrect that the broadest reasonable interpretation
    of “telephone call” and “real-time” data transfer requires a
    specific time delay limit. See Toshiba Corp. v. Imation
    Corp., 
    681 F.3d 1358
    , 1369 (Fed. Cir. 2012) (“We do not
    read limitations from the specification into claims.”). This
    court affirms the Board’s construction of the terms as any
    “structure capable of sustaining a telephone call or
    providing real-time properties.” 12 J.A. 21.
    C. Teles Waived Its Proposed Constructions of “Control
    Signal” and “Communications Connection”
    Claim 84 recites, inter alia, a “control device” that is
    “responsive to a control signal for changing-over from
    packet-switching transfer of first data of a communica-
    tions connection to line-switching transfer of second data
    of the communication connection without interruption of
    the communications connection.” ’902 patent col. 20 l. 66–
    col. 21 l. 4 (emphases added). The Board did not construe
    “control signal” or “communications connection,” because
    Teles did not dispute the meaning of those terms. Teles
    now argues that “[u]pon de novo review, the Court should
    find legal error in the [Board’s] failure to construe the
    terms ‘Control Signal’ and ‘Communications Connection.’”
    Teles’s Br. 45. It contends “[t]hese terms address key
    inventive concepts of the patent,” and “provide the solu-
    12  Teles’s claim construction arguments rely, in part,
    on its contention that the Supreme Court’s decision in
    Mayo requires “that a ‘baseline’ has to be identified, in
    view of the specification, by identifying the ‘inventive
    concepts’ of the claimed invention as disclosed by the
    patent’s specification.” Teles’s Br. 26 (citing Mayo Collab-
    orative Servs. v. Prometheus Labs., Inc., 
    132 S. Ct. 1289
    ,
    1294 (2012)). This court discerns nothing in the Board’s
    claim constructions that is contrary to Mayo, however,
    which addresses patentable subject matter under 35
    U.S.C. § 101, rather than principles of claim construction.
    16                                 CISCO SYSTEMS, INC.   v. LEE
    tion to the problem present in prior art systems.” 
    Id. at 45–46.
    According to Teles, “[a]ll of the appealed claims
    were carefully and deliberately limited to structure or
    acts of ‘changing-over’ . . . from the packet-switched
    network to the line-switched network ‘without interrup-
    tion’ of ‘the communications connection’ / ‘the call set-up
    procedure.’” 
    Id. at 46.
        Contrary to Teles’s argument, the Board had no obli-
    gation to consider claim construction challenges that were
    not actually raised before it.             See 37 C.F.R.
    § 41.67(c)(1)(vii). The Board did construe the “means
    responsive to a control signal” limitation in claim 68,
    finding it was a means-plus-function term and that the
    “control device 711” was corresponding structure. J.A. 22
    (emphasis added). Teles now contends that “control
    signal” requires “the real-time changing-over of an ongo-
    ing telephone call from a packet-switched network to a
    line-switched network without interruption of end-to-end
    communications connection,” and that “[c]ommunications
    [c]onnection should be construed as an end-terminal-to-
    end-terminal link.” Teles’s Br. 45. These arguments have
    been waived. Moreover, Teles’s one-and-a-half pages of
    argument on this issue do not cite to any intrinsic or
    extrinsic evidence to support its proposed constructions.
    To the extent Teles contests the Board’s construction of
    “means responsive to a control signal,” the Board properly
    treated it as a means-plus-function term with correspond-
    ing structure of the “control device 711.”
    Teles’s claim construction arguments are its sole chal-
    lenges to the rejections of claims 68, 69, 71, 75, 77, 79, 82,
    84, 87, 90, 92, 95, and 98 as anticipated by one or more of
    Jonas, Farese, Yoshida, and Matsukawa. Because the
    Board’s claim constructions are correct, this court also
    affirms these otherwise unchallenged anticipation rejec-
    tions.
    CISCO SYSTEMS, INC.   v. LEE                                17
    D. Teles’s New Challenges to Claims 100 and 102 Are
    Unpersuasive
    The Board affirmed the Examiner’s rejections of inde-
    pendent claim 100 and its dependent claim 102 as antici-
    pated by Jonas. Claim 100 recites, inter alia, “a control
    device,”
    the control device being responsive to the data
    packet headers for controlling the packet switch-
    ing device and the line switching device for estab-
    lishing      and       maintaining         respective
    communication connections for data transfer with
    real-time properties between origin end terminals
    and destination end terminals, and the control de-
    vice also being responsive to an overload in the In-
    ternet for automatically changing-over from
    packet-switching transfer of first data of a com-
    munications connection to line-switching transfer
    of second data of the communication connection
    without interruption of the communications con-
    nection when a data blockage occurs in the routing
    of data packets of the first data of the communica-
    tions connection through the Internet.
    ’902 patent col. 22 ll. 33–51 (emphases added to disputed
    language). On appeal, Teles argues that Jonas does not
    disclose (1) an “end terminal,” (2) a “communications
    connection,” or (3) a control device that is responsive to
    “data packet headers” and “an overload on the Internet.”
    Teles’s Br. 52, 56. Teles did not raise these arguments
    before the Board, however, where it challenged the rejec-
    tion of claims 100 and 102 based only on its arguments
    with respect to exemplary claim 68. See, e.g., J.A. 7174–
    75 (“real-time properties” and “telephone call” argu-
    ments), 7154–56 (arguing Jonas does not disclose the
    limitations of claim 68). “Absent exceptional circum-
    stances,” this court does not consider arguments not
    18                                CISCO SYSTEMS, INC.   v. LEE
    raised before the Board. In re Baxter Int’l, Inc., 
    678 F.3d 1357
    , 1362 (Fed. Cir. 2012).
    Even if this court considers the merits of these new
    arguments, they are unpersuasive. 13 Without deciding
    whether the above three limitations are required by
    claims 100 and 102, it is evident from the Board’s fact
    finding that Jonas discloses all three. Jonas describes
    monitoring a packet-switching transmission from a source
    computer to a destination computer and dynamically
    switching to a line-switching connection during an exist-
    ing transmission. Jonas col. 5 ll. 53–58. The Board found
    that Jonas discloses “‘dynamically tak[ing] advantage of
    both the inherent cost benefit of [a] . . . packet-switched
    [network] and the minimal delay time of [a] [line]-
    switched . . . network[ ]’” by monitoring transmission
    delay, and switching to the line-switched network when
    the delay exceeds a predetermined value. J.A. 13 (quoting
    Jonas col. 5 ll. 53–56). Jonas also features “data packet
    headers” and describes that packets transmitted over the
    bypass line-switched network may contain labels in the IP
    header. J.A. 12 (citing Jonas col. 4 ll. 43–45). Based on
    the Board’s fact findings, Jonas thus discloses an “end
    terminal,” a “communications connection,” and a control
    device responsive to data packet headers and Internet
    13 In its reply brief, Teles argues that Cisco and the
    PTO waived their argument that Teles’s arguments are
    waived. Teles Reply Br. 25 (citing Riemer v. Ill. Dep’t of
    Transp., 
    148 F.3d 800
    , 809 (7th Cir. 1998) for the proposi-
    tion that “[a] defense of waiver can itself be waived by not
    being raised”). This argument overlooks that this is Cisco
    and the PTO’s first opportunity to respond to Teles’s new
    arguments on claims 100 and 102.
    CISCO SYSTEMS, INC.   v. LEE                               19
    overload. Accordingly, the rejections of claims 100 and
    102 are affirmed. 14
    III. Cisco’s Appeal
    A. The Board Erred in Confirming the Patentability of
    Claims 91 and 104
    Claims 91 and 104 depend from claims 84 and 100,
    respectively, and add the limitation of “a multiplexer
    device for multiplexing data of several origin end termi-
    nals over a single line connection through the line-
    switching network.” ’902 patent col. 21 ll. 37–40 (claim
    91); 
    id. col. 23
    ll. 4–8 (claim 104 reciting substantially the
    same, except that the line-switching network must be a
    public telephone network). Cisco’s request for reexamina-
    tion argued these claims should be rejected as anticipated
    by Focsaneanu, or, alternatively, as obvious over Focsa-
    neanu alone or in combination with multiple prior art
    references. In particular, Cisco argued claim 91 would
    have been obvious over Focsaneanu and Lucent and
    either Jonas or Yoshida. It argued claim 104 would have
    been obvious over the combination of Focsaneanu, Lucent,
    and Jonas.
    The Board found that claims 91 and 104 were not an-
    ticipated by Focsaneanu. It agreed with Cisco that
    Focsaneanu discloses a multiplexer, but nevertheless
    found Focsaneanu does not disclose switching networks
    without interrupting an active communication, as re-
    quired by claims 91 and 104. J.A. 25 (“The one embodi-
    ment of Foscaneanu [sic] that clearly talks about change-
    over while a call is transpiring discloses that ongoing call
    is terminated.”); see also J.A.11 (citing Focsaneanu col. 10
    14  Because the Board’s rejections are affirmed, there
    is no need to determine whether the Board erred in de-
    clining to adopt Cisco’s alternative proposed bases for
    rejection. See Cisco’s Br. 3–4.
    20                                 CISCO SYSTEMS, INC.   v. LEE
    ll. 32–34) (stating “‘a data service request initiated by the
    user during a [Plain Old Telephone Service] call will
    disconnect the phone and present a carrier to the user’s
    modem’”) (emphasis added)). The Board also affirmed the
    Examiner’s decision that claim 91 would not have been
    obvious over Focsaneanu, Lucent, and either Jonas or
    Yoshida, and that claim 104 would not have been obvious
    over Focsaneanu, Lucent, and Jonas.
    On appeal, Cisco argues claims 91 and 104 are antici-
    pated by Focsaneanu, and would have been obvious over
    Focsaneanu, Jonas (or Yoshida), and Lucent. With re-
    spect to anticipation, Cisco argues Focsaneanu discloses
    changing-over between packet and line switching during
    an active transmission, and that the Board lacked sub-
    stantial evidence in finding otherwise. Cisco relies on the
    portion of Focsaneanu’s specification stating “‘the access
    module can dynamically select a different network from
    the one prescribed in the user profile, to carry the packet-
    ized data traffic.’” Cisco’s Br. 40 (quoting Focsaneanu col.
    11 ll. 7–10); see also Focsaneanu col. 11 ll. 15–16 (“The
    voice service [quality of service] is maintained by continu-
    ous monitoring of the transmission delay.”). According to
    Cisco, these portions of the specification show that the
    “change between the network originally selected for the
    voice call and the different network on which the call is
    routed is dynamically carried out within a single call and
    does not require the user to initiate a new call set-up
    procedure or to re-dial the number.” Cisco’s Br. 40. In
    finding otherwise, Cisco maintains the Board improperly
    focused on a single embodiment in Focsaneanu, and
    ignored other embodiments that meet the claim limitation
    of changing over in real time.
    The PTO and Teles respond that the Board’s findings
    on Focsaneanu are supported by substantial evidence.
    According to the PTO, “[n]one of the other disclosures in
    Focsaneanu cited by Cisco disclose[s] a change-over
    between modes during an active communication.” PTO
    CISCO SYSTEMS, INC.   v. LEE                             21
    Br. 47. It maintains the “dynamic” selection occurs prior
    to placing a telephone call, and that the quality of service
    disclosure “simply permits the most appropriate channel
    to be selected after a call is made.” 
    Id. This court
    need not resolve the parties’ arguments on
    anticipation; even if the Board was supported in finding
    Focsaneanu does not anticipate claims 91 and 104, it
    nevertheless erred in holding those claims are not invalid
    as obvious. According to the Board, the one limitation of
    underlying dependent claims 84 and 100 that is not
    disclosed in Focsaneanu is the change-over between line
    and packet switching during an existing communication,
    a limitation the Board found was disclosed by Jonas.
    Indeed, independent claims 84 and 100 are anticipated by
    Jonas, which therefore “disclose[s] each and every ele-
    ment” of those claims. In re Gleave, 
    560 F.3d 1331
    , 1334
    (Fed. Cir. 2009). Dependent claims 91 and 104 add only a
    multiplexer to their respective independent claims, and
    Cisco argued to the Board that “[t]here is nothing novel
    about a multiplexer.” J.A. 6847.
    The Board nonetheless reasoned that claims 91 and
    104 would not have been obvious because “[t]he multiplex-
    ing disclosed in Focsaneanu is not disclosed to support
    changing-over between switching networks for data
    transfers having real-time properties.” J.A. 43. Claims
    91 and 104 do not require the multiplexer itself to “sup-
    port changing-over between switching networks,” howev-
    er. The claimed multiplexer resides in “the line switching
    device” and “multiplex[es] data of several origin end
    terminals over a single line connection through the line-
    switching network.” ’902 patent col. 21 ll. 36–40; 
    id. col. 23
    ll. 4–9 (emphases added). There is no requirement
    that the multiplexer itself trigger or support changing-
    over between line switching and packet switching. Ac-
    cording to the claim language, the multiplexer’s operation
    is limited to the line-switching network. That independ-
    ent claims 84 and 100 recite changing-over between
    22                                CISCO SYSTEMS, INC.   v. LEE
    packet switching and line switching does not mean claim
    91 and 104’s multiplexer must do the same, especially
    when the multiplexer is expressly limited to the line-
    switching network. The Board found that Focsaneanu’s
    multiplexer is “used for multiplexing signals from differ-
    ent line interfaces,” J.A. 43, and claim 91 and 104’s mul-
    tiplexer requires no more, especially under the broadest
    reasonable interpretation. Nor did the Board identify any
    other unique aspect of the ’902 patent’s multiplexer;
    rather, “[t]he technologies used [in the ’902 patent] are
    known per se.” ’902 patent col. 6 l. 56.
    Because the Board’s improper limitation of the
    claimed multiplexer was its sole reason for finding claims
    91 and 104 not obvious, the Board’s allowance of claims
    91 and 104 is reversed. Once the proper scope of claim 91
    and 104’s multiplexer is understood, it is apparent that
    including such a multiplexer in the combination of Focsa-
    neanu, Lucent, and, inter alia, Jonas, is no more than “the
    predictable use of prior art elements according to their
    established functions.” 15 KSR Int’l Co. v. Teleflex Inc.,
    
    550 U.S. 398
    , 417 (2007).
    CONCLUSION
    For the foregoing reasons, this court reverses the
    Board’s decision confirming the patentability of claims 91
    and 104, and affirms the Board in all other respects.
    AFFIRMED-IN-PART AND REVERSED-IN-PART
    Costs to Cisco
    15Because claims 91 and 104 would have been obvi-
    ous over the combination of Focsaneanu, Jonas, and
    Lucent, this court need not determine whether claim 91
    would also have been obvious over Focsaneanu, Yoshida,
    and Lucent.