Golden Bridge Technology, Inc. v. Apple Inc. , 758 F.3d 1362 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
GOLDEN BRIDGE TECHNOLOGY, INC.,
Plaintiff-Appellant,
v.
APPLE INC.,
Defendant-Appellee,
AND
MOTOROLA MOBILITY, LLC,
Defendant.
______________________
2013-1496
______________________
Appeal from the United States District Court for the
District of Delaware in No. 10-CV-0428, Judge Sue L.
Robinson.
______________________
Decided: July 14, 2014
______________________
MARK D. GIARRATANA, McCarter & English, LLP, of
Hartford, Connecticut, argued for plaintiff-appellant.
With him on the brief were ERIC E. GRONDAHL; MICHAEL
P. KELLY and DANIEL M. SILVER, of Wilmington, Dela-
ware; and STEPHEN A. SALTZBURG, George Washington
University, School of Law, of Washington, DC.
2 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
TIMOTHY S. TETER, Cooley LLP, of Palo Alto, Califor-
nia, argued for defendant-appellee. With him on the brief
were BENJAMIN G. DAMSTEDT, LORI R. MASON, and
LOWELL D. MEAD.
______________________
Before MOORE, MAYER, and CHEN, Circuit Judges.
MOORE, Circuit Judge.
Golden Bridge Technology, Inc. (GBT) appeals from
the district court’s grant of summary judgment that Apple
Inc. (Apple) does not infringe the asserted claims of U.S.
Patent Nos. 6,574,267 (the ’267 patent) and 7,359,427 (the
’427 patent). We affirm.
BACKGROUND
GBT accused Apple of infringing the patents-in-suit, 1
which describe and claim an improvement to a Code
Division Multiple Access (CDMA) system. ’267 patent,
Abstract. A CDMA wireless cellular network consists of a
base station and multiple mobile stations, such as cellular
telephones. Golden Bridge Tech., Inc. v. Apple Inc., 937 F.
Supp. 2d 504, 508 (D. Del. 2013) (Summary Judgment
Order). To establish communication between a mobile
station and a base station, the mobile station transmits a
known signal called a preamble over a random access
channel (RACH). Id. The CDMA system allows multiple
signals to be sent over the same RACH by using different
numerical spreading codes in transmitting each signal.
Spreading codes enable the mobile stations and the base
station to distinguish a particular wireless communica-
tion from other concurrent communications. See ’267
patent col. 5 ll. 4–7, ll. 28–30. However, if too many
1 The ’427 patent is a continuation of the ’267 pa-
tent.
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 3
mobile stations are transmitting simultaneously at high
power levels, the signals from mobile stations can inter-
fere with each other.
The patents-in-suit disclose an improvement for a
CDMA system that reduces the risk of interference be-
tween the signals sent from various mobile stations. In
particular, the patents-in-suit disclose that a mobile
station seeking to communicate with the base station will
transmit preambles at increasing power levels until it
receives an acknowledgment signal from the base station
indicating that the preamble was received. Id. col. 6 ll.
27–32, col. 7 ll. 47–51, 58–61. Once the mobile station
receives an acknowledgment from the base station, it
stops transmitting preambles and starts transmitting
message information. Id. col. 7 ll. 58–61. This ensures
that each data signal is transmitted at the lowest power
necessary to reach the base station, thereby reducing the
risk of interference.
Relevant to this appeal, GBT previously asserted the
’267 patent in the Eastern District of Texas (Texas Litiga-
tion). In accordance with the parties’ stipulation, the
Texas district court construed preamble and access pre-
amble (collectively referred to as preamble) as “a signal
used for communicating with the base station that is
spread before transmission.” J.A. 3228. The district court
subsequently granted summary judgment of anticipation,
which we affirmed. Golden Bridge Tech. Inc. v. Nokia,
Inc., 527 F.3d 1318 (Fed. Cir. 2008). While the appeal of
the Texas Litigation was pending before our court, GBT
sought new claims (1) during a reexamination of the ’267
patent and (2) in a pending continuation application,
which issued as the ’427 patent. During prosecution of
the ’427 patent and reexamination of the ’267 patent,
GBT submitted to the United States Patent and Trade-
mark Office (PTO) as part of an Information Disclosure
Statement (IDS) the claim construction order from the
Texas Litigation and various filings setting forth GBT’s
4 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
stipulated definition of preamble. J.A. 1680, 1808–10,
2008, 2127, 2639, 2641, 2679, 3228. The claims GBT
asserted against Apple in this case are new claims that
were either added during reexamination of the ’267
patent or during prosecution of the ’427 patent.
Claim 42 of the reexamined ’267 patent is representa-
tive of the claims asserted in this litigation (emphases
added):
A method of transferring packet data for a mobile
station (MS) with an MS receiver and an MS
transmitter comprising:
receiving at the MS receiver a broadcast common
channel from a base station;
determining a plurality of parameters required for
transmission to the base station;
spreading an access preamble selected from a set
of predefined preambles;
transmitting from the MS transmitter the spread
access preamble, at a first discrete power level;
if no layer one acknowledgment corresponding to
the access preamble is detected, transmitting a
spread access preamble from the MS transmitter
at a second discrete power level higher than the
first discrete power level; and
upon detecting a layer one acknowledgment corre-
sponding to a transmitted access preamble, ceas-
ing preamble transmission and transmitting the
packet data from the MS transmitter.
The district court issued a claim construction order
construing the disputed claim terms, including the term
preamble. Golden Bridge Tech., Inc. v. Apple Inc., 937 F.
Supp. 2d 490, 500 (D. Del. 2013) (Claim Construction
Order). The court granted Apple’s motion for summary
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 5
judgment of noninfringement based on its construction of
preamble, and denied Apple’s motion for summary judg-
ment of invalidity. Summary Judgment Order, at 523.
Following the district court’s ruling on summary judg-
ment, GBT filed an emergency motion for reconsideration.
The court reviewed the motion but declined to grant GBT
the relief it requested and refused to modify its summary
judgment of noninfringement. Id. at 523–26. The district
court entered judgment pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure, rendering its summary
judgment of noninfringement final. J.A. 68–69. GBT
appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(1).
DISCUSSION
A. Claim Construction: preamble
We review claim construction de novo. Lighting Bal-
last Control LLC v. Philips Elecs. N. Am. Corp., 744 F.3d
1272, 1276–77 (Fed. Cir. 2014) (en banc). Claim terms
are generally given their plain and ordinary meanings to
one of skill in the art when read in the context of the
specification and prosecution history. See Phillips v.
AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en
banc). “There are only two exceptions to this general rule:
1) when a patentee sets out a definition and acts as his
own lexicographer, or 2) when the patentee disavows the
full scope of the claim term either in the specification or
during prosecution.” Thorner v. Sony Computer Entm’t
Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). Prosecu-
tion disclaimer or disavowal must be clear and unmistak-
able. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314,
1325–26 (Fed. Cir. 2003).
In construing the term preamble in the ’267 and the
’427 patents, the district court agreed with the construc-
tion “from the Texas [L]itigation,” concluding that it was
“still applicable insofar as [it] include[s] spreading prior to
transmission.” Claim Construction Order, at 497. It
6 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
construed preamble as “a signal for communicating with
the base station that is spread before transmission and
that is without message data.” Id. at 500.
GBT disputes the portion of the district court’s con-
struction requiring that the preamble be spread prior to
transmission. It argues that the district court’s construc-
tion departs from the plain meaning of preamble, and
that there is no lexicography or disclaimer that would
merit this departure. GBT also contends that it is not
bound by its stipulated construction of preamble in the
Texas Litigation. It argues that its submission of its
stipulated construction to the PTO in an IDS does not
constitute a disclaimer of the broader claim scope. GBT
contends that, under PTO rules, submissions in an IDS
are not admissions that the cited information is material.
37 C.F.R. §§ 1.56(b)(2), 1.97(h); see also Abbott Labs. v.
Baxter Pharm. Prods., Inc., 334 F.3d 1274, 1279 (Fed. Cir.
2003) (“[W]ith the mere listing of references in an IDS,
the applicant has admitted no more than that references
in the disclosure may be material . . . .”). Therefore, GBT
argues that its stipulated construction of preamble in the
Texas Litigation does not control the meaning of preamble
in the reexamined ’267 patent and new ’427 patent.
We conclude that GBT’s submissions during prosecu-
tion of its stipulated construction for the term preamble
constitute disclaimer. Although we generally construe
terms according to their plain and ordinary meanings to
one of ordinary skill in the art, we depart from that
meaning where there is disclaimer. Thorner, 669 F.3d at
1365. Here, GBT clearly and unmistakably limited the
term preamble to “a signal used for communicating with
the base station that is spread before transmission.” J.A.
2127, 3228–30, 3255–56, 3245. During reexamination of
the ’267 patent and prosecution of the ’427 patent, GBT
submitted and requested that the PTO “expressly consid-
er[]” its stipulated construction of preamble from the
Texas Litigation. J.A. 1674, 1680, 1808–10, 2007–08,
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 7
2127, 2639, 2641, 2679. The stipulation required the
preamble to be spread before transmission. Id. It would
have been natural for both the PTO and the public to rely
upon the stipulation in determining the scope of the
claimed invention.
It is correct that “mere disclosure of potentially mate-
rial prior art to the [PTO] does not automatically limit the
claimed invention.” Abbott Labs., 334 F.3d at 1279.
However, this is not a typical IDS, and GBT did more
than simply disclose potentially material prior art. It
submitted its own stipulated construction of a claim term
in the context of the particular patents being reexamined
(’267 patent) and prosecuted (’427 patent). This is a clear
and unmistakable assertion by the patentee to the PTO of
the meaning and scope of the term preamble. The fact
that the stipulation was contained in documents accom-
panying an IDS does not change this result. We have
held that “an applicant’s remarks submitted with an
[IDS] can be the basis for limiting claim scope.” Uship
Intellectual Props., LLC v. United States, 714 F.3d 1311,
1315 (Fed. Cir. 2013); see also Ekchian v. Home Depot,
Inc., 104 F.3d 1299, 1303 (Fed. Cir. 1997) (“An IDS is part
of the prosecution history on which the examiner, the
courts, and the public are entitled to rely.”). On the facts
of this case, we see no meaningful difference between
limiting claim scope based on an applicant’s stipulations
contained in IDS documents and an applicant’s remarks
contained in the IDS itself. GBT’s stipulation tells the
PTO how preamble should be construed, and we conclude
that GBT is bound by this representation. We construe
preamble in accordance with the stipulation as “a signal
used for communication with the base station that is
8 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
spread before transmission and that is without message
data.” 2
Although our precedent allows applicants to rescind a
disclaimer during prosecution, GBT did not avail itself of
this route and never notified the PTO that it sought a
meaning of preamble that was different from its stipulat-
ed construction. See, e.g., Hakim v. Cannon Avent Grp.,
479 F.3d 1313, 1317–18 (Fed. Cir. 2007); Spring Window
Fashions L.P. v. Novo Indus., L.P., 323 F.3d 989, 995
(Fed. Cir. 2003) (holding the applicant to the “restrictive
claim construction that was argued during prosecution”
where he “never retracted any of his statements”). In-
deed, there is no dispute that GBT did not rescind or
retract its stipulated construction of preamble during
prosecution of the patents-in-suit. We hold that GBT’s
submission of its stipulation to the PTO thus constitutes a
clear and unmistakable disclaimer of the broader claim
scope that GBT now seeks.
B. Summary Judgment of Noninfringement
Applying the law of the regional circuit, we review the
grant of summary judgment de novo. Del. Valley Floral
Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1378
2 We note that the construction we adopt modifies
the district court’s construction slightly. In the stipula-
tion submitted to the PTO, GBT construed preamble as “a
signal used for communication . . . ” but the district court
construed preamble as “a signal for communication . . . .”
Because we find GBT bound by its stipulation, we modify
the construction to reflect the language of the stipulation
which would afford broader coverage. This modification
does not require remand as the only accused preamble
would still not infringe because it is not spread before
transmission.
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 9
(Fed. Cir. 2010). We affirm summary judgment of nonin-
fringement where “there is an absence of evidence to
support the [patentee]’s case.” Exigent Tech. Inc. v.
Atrana Solutions Inc., 442 F.3d 1301, 1307–10 (Fed. Cir.
2006). Applying Third Circuit law, we review a district
court’s grant or denial of a motion for reconsideration for
an abuse of discretion. Koshatka v. Phila. Newspapers,
Inc., 762 F.2d 329, 333 (3d Cir. 1985).
GBT accused Apple’s mobile devices that use a third
generation (3G) cellular technology of infringing various
claims of the ’267 and ’427 patents. The accused Apple
mobile devices send an access signal—called a Physical
Random Access Channel (PRACH) preamble—to a specific
base station to establish a communication link with the
base station. The PRACH preamble is made of a combi-
nation of (1) a base station specific scrambling code and
(2) a signature sequence. The signature sequence is
created first and is then spread using the scrambling code
to create the PRACH preamble. The completed PRACH
preamble is then transmitted to the base station.
Throughout the case, GBT relied exclusively on the
PRACH preamble in the accused devices to meet the
preamble limitations in the asserted claims. Apple moved
for summary judgment of noninfringement on the ground
that GBT failed to create a genuine issue of material fact
regarding whether the preamble is spread prior to trans-
mission. Apple explained that according to GBT (citing
GBT’s expert) the preamble of the accused device is the
PRACH preamble, which is composed of two spreading
codes: the signature sequence and the scrambling code.
Apple argued that it was entitled to summary judgment
because the PRACH preamble is not spread prior to
transmission. Apple explained that even if the signature
sequence is spread by the scrambling code, that “argu-
ment is beside the point.” J.A. 2871. “The W-CDMA
preamble signature is not, by itself, an access signal or a
preamble.” Id. Apple explained that “all of GBT’s evi-
10 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
dence regarding spreading focuses entirely on the genera-
tion of the access signal or PRACH preamble code.” J.A.
2870. Apple’s contention was clear: the accused preamble
was the PRACH preamble, and its motion for summary
judgment was based on the fact that GBT did not submit
any evidence that the PRACH preamble was spread after
it was created.
GBT’s response stated: “There is no dispute that the
spread access preamble of the Accused Devices is com-
posed of two spreading codes, i.e., the preamble signature
sequence spread by the scrambling code.” 3 J.A. 3409.
GBT argued that “[t]he claim language literally covers
spreading the access preamble or preamble code either
during construction of the spread access preamble or
after.” J.A. 3407. Its argument was that there was no
“temporal limitation on the spreading,” J.A. 3409, and
thus spreading by the scrambling code during generation
of the preamble satisfied the preamble/spreading limita-
tion. GBT did not argue that the signature sequence was
itself the preamble and that, therefore, there was spread-
ing by the scrambling code after the preamble was creat-
ed. 4
3 GBT filed a motion for summary judgment of in-
fringement which likewise argued that the access pream-
ble was the signature sequence and the scrambling code.
4 GBT did state, without citation to evidence, that
“Vojcic [GBT’s expert] is unambiguously clear that the
preamble signature itself is an access signal, and is
spread by the scrambling code to increase the bandwidth
of the preamble. . . . Apple cannot deny that the signature
is a signal . . . .” J.A. 3409–10. GBT’s attorney argument,
that the signature is itself a signal, is not an assertion
that the signature signal is the preamble or the access
preamble. And regardless, Vojcic for did not opine that
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 11
The district court rejected GBT’s PRACH preamble in-
fringement argument and granted summary judgment of
noninfringement to Apple. Summary Judgment Order, at
515. The court concluded that there was no genuine
dispute that the PRACH preamble is not spread prior to
transmission, as required by the court’s construction of
preamble. Id. It determined that “GBT’s evidence, even
if accepted, would only show that a signature—not an
access preamble—is spread.” Id. GBT only presented
evidence that the signature sequence was spread during
generation of the PRACH preamble, not that the PRACH
preamble itself was spread. Because the PRACH pream-
ble was the accused preamble, the court concluded that
there is no evidence which creates a genuine issue of fact.
Following the district court’s decision on summary
judgment, GBT filed a motion for reconsideration arguing
that the accused devices’ signature sequences meet the
preamble limitations in the asserted claims. The district
court declined to modify its judgment of noninfringement.
Id. at 526. It described GBT’s signature sequence in-
fringement theory as “new attorney argument,” rejected
the theory on the merits, and again concluded that GBT
did not raise a genuine dispute of material fact with
respect to infringement. Id. at 525–26.
1. PRACH Preamble (Decision on Summary Judgment)
On appeal, GBT argues that there is a disputed issue
of material fact that precluded summary judgment of
noninfringement because the claims do not rule out
the signature sequence alone is the preamble. He opined
that the signature sequence was spread by the scrambling
code, but like GBT’s infringement contentions, GBT’s
expert opined that the PRACH preamble was the pream-
ble which satisfied the claim term preamble.
12 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
spreading during generation of the preamble. It argues
that the accused devices spread the PRACH preamble
during generation—in other words, the signature se-
quence is spread by the scrambling code to create the
PRACH preamble. GBT contends that the claim language
covers spreading the preamble either during generation or
after the preamble has been generated.
We hold that the district court properly granted
summary judgment of noninfringement. The preamble
must be “spread prior to transmission.” The PRACH
preamble is not spread. The signature sequence is spread
by the scrambling code to create the PRACH preamble.
See Appellant’s Br. 63–64. This step cannot constitute
spreading the PRACH preamble because a preamble
cannot be spread before it exists. Because there is no
dispute that the PRACH preamble is not spread, it cannot
meet the preamble limitations in the asserted claims.
The district court properly granted summary judgment of
noninfringement on this basis.
2. Signature Sequence (Decision on Reconsideration)
GBT also argues that the district court erred by de-
clining to modify its judgment of noninfringement on
reconsideration. GBT’s argument is two-fold. First, it
contends that it did not waive its signature sequence
infringement theory because that theory was not intro-
duced for the first time in its motion for reconsideration.
Second, on the merits, GBT argues that there is a genuine
issue of material fact with respect to infringement based
on its theory that the signature sequence in the accused
devices meets the preamble limitations.
Apple responds that GBT waived its signature se-
quence theory by failing to present and support it at
summary judgment. It argues that the only infringement
theory GBT presented prior to its motion for reconsidera-
tion was that the PRACH preamble, not the signature
sequence, in the accused devices met the preamble limita-
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 13
tions. It argues that GBT should not be allowed to aban-
don its infringement arguments and present new ones
after an adverse ruling on summary judgment. On the
merits, Apple contends that there is no genuine issue of
material fact with respect to infringement because the
signature sequence is not “a signal for communicating
with the base station,” as required by the court’s construc-
tion of preamble.
We conclude that the district court properly refused to
grant the relief GBT requested in its motion for reconsid-
eration. An argument made for the first time in a motion
for reconsideration comes too late and is ordinarily
deemed waived. Bluebonnet Sav. Bank, F.S.B. v. United
States, 466 F.3d 1349, 1361 (Fed. Cir. 2006); Caldwell v.
United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004);
Hazani v. U.S. Int’l Trade Comm’n, 126 F.3d 1473, 1476–
77 (Fed. Cir. 1997). Indeed, new arguments are beyond
the scope of a motion for reconsideration. “Such motions
are not to be used as an opportunity to relitigate the case;
rather, they may be used only to correct manifest errors of
law or fact or to present newly discovered evidence.”
Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011).
We conclude that GBT’s signature sequence infringe-
ment theory was raised for the first time in its motion for
reconsideration. Prior to its motion for reconsideration,
GBT did not argue that the signature sequence alone in
the accused device was itself a preamble, but instead that
the PRACH preamble met the preamble limitations in the
claims. Having failed to persuade the court that a genu-
ine issue of material fact remained with respect to its
PRACH preamble infringement theory, GBT presented a
new infringement theory on reconsideration. This was
improper. See Finnigan Corp. v. Int’l Trade Comm’n, 180
F.3d 1354, 1363 (Fed. Cir. 1999) (“A party’s argument
should not be a moving target.”); Bhatnagar v. Surrendra
Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995) (rejecting
a motion for reconsideration as a “second bite at the
14 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
apple” and explaining that “[h]aving failed in its first
effort to persuade the court,” the plaintiff “simply changed
theories and tried again”); Senza-Gel Corp. v. Seiffhart,
803 F.3d 661, 663–64 (Fed. Cir. 1986) (“[A] motion for
reconsideration is not a chance at a second bite” and
should not “enable the movant to ‘sandbag’ an adver-
sary.”). It would be fundamentally unfair to allow GBT,
after losing the claim construction arguments at issue and
the summary judgment on its infringement contentions,
to change those contentions. Though parties can certainly
argue in the alternative, their infringement contentions
cannot be a moving target. We agree with Apple that
GBT did not argue that the signature sequence alone
constituted the accused preamble. It is too late to do so
for the first time in a motion for reconsideration.
Throughout the litigation, GBT’s filings with the dis-
trict court and its expert report identified only the
PRACH preamble as meeting the preamble limitations in
the asserted claims. GBT’s expert explained “[t]he
PRACH preamble is composed of two spreading codes
[signature sequence and scrambling code] without mes-
sage data.” J.A. 213. “[I]n the Accused Devices each
access preamble is composed of two spreading codes
[PRACH signature code and PRACH scrambling code]
without message data.” J.A. 225. “[E]ach access pream-
ble is formed by combining one of the available preamble
signatures with the preamble scrambling code specific to
the base station. The combination of an available pream-
ble signature and scrambling code specific to the base
station results in an access preamble.” J.A. 241. Moreo-
ver, at the hearing, GBT characterized its expert as
opining that the PRACH preamble was the preamble in
the accused device. See, e.g., J.A. 3081 (explaining GBT’s
expert’s methodology and stating that “the random access
preamble code is formed from the preamble scrambling
code and the preamble signature”). In fact, GBT cited in
its summary judgment briefs, as support for the proposi-
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 15
tion that the PRACH preamble is the accused preamble,
the very same paragraphs of the expert report that GBT
now claims on appeal stand for the assertion that the
signature sequence is the accused preamble. Compare
J.A. 3341–42 (citing J.A. 225–26, ¶74), with Appellant’s
Br. at 52 (citing J.A. 225–26, ¶74).
On appeal, GBT argues that the district court erred in
its conclusion that its expert opinion “does not specifically
address GBT’s current contention that the signature
sequence alone constitutes a signal for communicating
with the base station.” Appellant’s Br. at 52 (quoting
Summary Judgment Order, at 525 n.7). We see no error
in the district court’s interpretation of GBT’s expert
testimony. We have reviewed the opinion cited by GBT
and agree with the district court that GBT’s expert did
not opine that the signature sequence alone constituted
the accused preamble. The expert opinion repeatedly
characterized the preamble as containing two codes
(signature and scrambling). Though the expert referred
to the “preamble signature,” he also referred throughout
to the “preamble scrambling code.” See, e.g., J.A. 213–15,
¶¶48–49; J.A. 225–26, ¶¶74–76; J.A. 240, ¶107. GBT’s
expert opined that these two codes (signature and scram-
bling), which constitute the PRACH preamble in the
accused device, together satisfy the preamble term.
Though GBT’s expert was at times inconsistent with his
nomenclature, he did not make the alternative argument
that the signature sequence of the accused device alone
satisfies the preamble term.
Even GBT’s infringement contentions identified only
the PRACH preamble as meeting the preamble limitation
in the claims. “In the Accused Devices, each access pre-
amble is composed of two spreading codes without mes-
sage data.” See J.A. 298–99. The preamble or the access
preamble is always identified as the combination of the
preamble scrambling code and the preamble signature
16 GOLDEN BRIDGE TECHNOLOGY v. APPLE INC.
sequence (also sometimes referred to as the preamble
signature signal).
On appeal, GBT suggests that Apple’s own interroga-
tory response combined with Apple’s own expert report
establish that GBT raised its signature sequence in-
fringement theory prior to its motion for reconsideration.
Apple’s interrogatory response indicates that GBT alleged
that the preamble limitation is met by the RACH/PRACH
preamble part described in various sections of the stand-
ard. J.A. 528. It is not clear that this response is an
admission that GBT argued that the signature sequence
alone is the preamble in the accused device. And we
cannot find, nor has GBT directed us to, argument and
evidence that the signature sequence is the preamble.
GBT’s argument regarding Apple’s expert is likewise
insufficient to establish that GBT raised its signature
sequence infringement theory before its motion for recon-
sideration. Apple’s expert did not opine that the signa-
ture sequence constitutes the preamble. At most, he
noted in multiple places that GBT’s expert was incon-
sistent in his use of the term preamble. J.A. 635, ¶154;
J.A. 638, ¶162. He stated: “Dr. Vojcic’s absence of a clear
and consistent identification of what he considers to be
meeting the claimed ‘preamble’ is of critical importance.”
J.A. 639, ¶162. Apple’s expert addressed all the possible
ways that GBT’s expert could be arguing that the pream-
ble term is met in the accused device: (1) each signature,
(2) the 256-fold repetition of these signatures, and (3) the
combination of the signature sequence and the scrambling
code. J.A. 637–40. Apple’s expert opined that under any
of those interpretations Apple’s device does not meet the
preamble limitation. This testimony by Apple’s expert,
about GBT’s expert’s confusing and inconsistent nomen-
clature, does not establish that GBT’s signature sequence
theory was not new. Like the district court, we have
reviewed the arguments and evidence submitted by GBT,
including their expert report, and we conclude that it did
GOLDEN BRIDGE TECHNOLOGY v. APPLE INC. 17
not argue that the signature sequence in the accused
device is itself the preamble. This argument was thus
waived.
Because we conclude that GBT waived the signature
sequence argument, we do not pass judgment on whether
the signature sequence is a signal used for communicating
with the base station that is spread before transmission.
CONCLUSION
We affirm the district court’s grant of summary judg-
ment of noninfringement.
AFFIRMED