Wi-Lan USA, Inc. v. Apple Inc. ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
WI-LAN USA, INC., WI-LAN, INC.,
Plaintiffs-Appellants
v.
APPLE INC.,
Defendant-Appellee
______________________
2015-1256
______________________
Appeal from the United States District Court for the
Southern District of California in No. 3:13-cv-00798-DMS-
BLM, Judge Dana M. Sabraw.
______________________
Decided: August 1, 2016
______________________
ROBERT A. COTE, McKool Smith, P.C., New York, NY,
argued for plaintiffs-appellants. Also represented by
KEVIN SCHUBERT; DIRK D. THOMAS, Washington, DC.
MARK C. SCARSI, Milbank, Tweed, Hadley & McCloy,
LLP, Los Angeles, CA, argued for defendant-appellee.
Also represented by ASHLEE N. LIN, MIGUEL JESUS RUIZ,
MICHAEL K. SHEEN; CHRISTOPHER JAMES GASPAR, New
York, NY.
______________________
Before LOURIE, BRYSON, and CHEN, Circuit Judges.
2 WI-LAN USA, INC. v. APPLE INC.
CHEN, Circuit Judge.
This appeal arises from an infringement action Wi-
LAN, Inc. and Wi-LAN USA, Inc. (Wi-LAN) filed against
Apple, Inc. (Apple). Wi-LAN claims that Apple’s iPhone
operating on a 4G network infringes its U.S. Patent Nos.
8,311,040 (the ’040 patent) and 8,315,640 (the ’640 pa-
tent). Based on several claim constructions the district
court reached, it granted Apple summary judgment of
noninfringement on all asserted claims. It then denied
Wi-LAN’s motion for reconsideration of that grant of
summary judgment. Wi-LAN takes issue with two of the
district court’s claim constructions, and it requests that
we reverse the district court’s grant of summary judgment
on all asserted claims of the ’040 patent and two claims of
the ’640 patent.
Both patents in suit result from advances a network-
ing company, Ensemble, proposed to make to the WiMAX
wireless network standard. In a typical wireless network,
a base station connects directly to the user devices that it
serves. The ’040 and ’640 patents introduce a modifica-
tion to this typical network to add intermediary nodes 1
between the base station and the user devices. ’040
patent at Fig. 1, 4:11–16, 23–24; ’640 patent at Fig. 1,
6:30–32, 47–48. Communications from the base station to
a user device pass from the base station through an
intermediary node to the user device; communications
from a user device to the base station take the reverse
path, from the user device through the intermediary node
to the base station. ’040 patent at 4:40–41; ’640 patent at
1 The specifications and claims of the patents in
suit refer to this intermediary node with various terms.
Neither party contends before us that these various terms
carry any difference in meaning. For simplicity, we
therefore refer to this network component consistently as
an “intermediary node.”
WI-LAN USA, INC. v. APPLE INC. 3
Fig. 1, 19:28–29. This network architecture allowed for
efficiency gains, primarily because the base station could
offload some of its more resource-intensive tasks to the
intermediary nodes. ’040 patent at 3:40–55; ’640 patent
at 4:38–48. Wi-LAN purchased Ensemble’s patent portfo-
lio. The two patents in suit, which Wi-LAN filed as
continuation applications from applications Ensemble had
originally filed, address two specific advances that En-
semble achieved in this network architecture with inter-
mediary nodes.
The ’040 patent addresses an efficiency gain that a
network with intermediary nodes can provide: before an
intermediary node passes data packets it receives from its
users to the base station, it can reformat these packets for
easier transmission on the network. Claim 1 is repre-
sentative for our purposes. It focuses on the intermediary
node—here claimed as a “node for a communications
system”—and describes the process by which it converts
non-uniform “service data units” that it receives from its
user devices into uniform “protocol data units” for re-
transmission to the base station:
1. A node for a communications system that packs
and fragments variable-length service data units
(SDU) for mapping into variable length protocol
data units (PDU), each SDU being associated with
a specified connection, the node comprising:
a communications processor configured to
pack and fragment SDUs associated with
a specified connection into a PDU, includ-
ing
allocate bandwidth for the specified con-
nection, based on the priority of the con-
nection,
4 WI-LAN USA, INC. v. APPLE INC.
establish a length for the PDU based on
the bandwidth allocated to the specified
connection in a current frame,
pack a first SDU into a payload area of the
PDU,
determine whether a second SDU is larger
than a remaining payload area of the
PDU,
if the second SDU is not larger than the
remaining payload area of the PDU, map
the second SDU to the remaining payload
area of the PDU, and
if the second SDU is larger than the re-
maining payload area of the PDU, frag-
ment the second SDU into at least two
fragments and map the first fragment to
the remaining payload area of the PDU,
and
include packing sub-headers in the PDU
to allow determination of the length of the
SDUs and the lengths of the fragments
that are mapped to the PDU.
’040 patent at 19:29–53 (emphasis added).
The ’640 patent describes a process by which a net-
work with an intermediary node can allocate uplink
bandwidth—its data-carrying capacity in the direction
from user devices to the base station—among its various
user devices. Claim 1 is exemplary for our purposes. It
describes a process where the intermediary node—
claimed as a “wireless subscriber radio unit” here—
registers itself with the base station, requests and re-
ceives uplink bandwidth from the base station in which to
transmit a second bandwidth request, makes this second
WI-LAN USA, INC. v. APPLE INC. 5
bandwidth request and receives bandwidth, and then
allocates this bandwidth to its “UL connections”:
1. A method for requesting bandwidth on demand
in a wireless communication system, wherein the
wireless communication system includes a wire-
less subscriber radio unit, the method comprising:
registering the wireless communication
radio unit with a base station in the wire-
less communication system and establish-
ing communication between the wireless
subscriber radio unit and the base station;
transmitting from the wireless subscriber
radio unit which is registered with the
base station, an explicit message to the
base station requesting to be provided an
allocation of uplink (UL) bandwidth in
which to transmit a bandwidth request;
receiving at the wireless subscriber radio
unit the allocation of UL bandwidth in
which to transmit a bandwidth request;
transmitting the bandwidth request with-
in the allocation of UL bandwidth, the
bandwidth request specifying a requested
UL bandwidth allocation; and
receiving an UL bandwidth grant for the
wireless subscriber radio unit in response
to the bandwidth request;
wherein the wireless subscriber radio unit
maintains a plurality of queues, each
queue for data pertaining to one or more
UL connections with similar QoS [quality
of service] and wherein the wireless sub-
scriber radio unit allocates the UL band-
6 WI-LAN USA, INC. v. APPLE INC.
width grant to the one or more UL connec-
tions based on QoS priority.
’640 patent at 23:7–33 (emphasis added).
Wi-LAN alleges that Apple’s iPhones infringe both as-
serted patents when running on a 4G LTE network. The
parties agree that the accused phones connect to network
base stations (here, cellular towers) directly, not through
any piece of network equipment playing the role of the
intermediary node. Wi-LAN takes the infringement
position that, instead, its claimed intermediary node
maps onto the baseband processor in Apple’s phone,
which handles communications with the 4G network.
Under this infringement theory, the claimed user device
maps onto the phone’s application processor, which runs
applications on the phone. The issues before us center on
the question whether this different network architecture
nonetheless makes use of the inventions claimed in the
patents.
Wi-LAN appeals one of the district court’s claim con-
structions per asserted patent: its construction of the term
“specified connection” in the ’040 patent and the term “UL
connections” in the ’640 patent. Apple counters with an
argument that Wi-LAN waived its appeal on “UL connec-
tions” by raising the construction it now seeks for the first
time in a motion for reconsideration of the district court’s
summary-judgment order. We reject Apple’s waiver
argument, finding that the district court did not abuse its
discretion in considering Wi-LAN’s new construction at
that late stage of the case. We affirm both of the district
court’s claim constructions. Because Wi-LAN agrees on
appeal that the accused devices do not infringe under the
district court’s constructions, we affirm the district court’s
grant of summary judgment of noninfringement on all
asserted claims.
WI-LAN USA, INC. v. APPLE INC. 7
PROCEDURAL BACKGROUND
Wi-LAN sued Apple for infringement, asserting the
’040 and ’640 patents against Apple’s iPhones running on
a 4G network. The case progressed through claim con-
struction, where the district court construed several terms
including the two at issue before us: “specified connection”
in the ’040 patent and “UL connections” in the ’640 pa-
tent. For “specified connection,” the court adopted Apple’s
proposed construction, defining the term as “the commu-
nications link between a[n intermediary] node and a
specific end user.” J.A. 24. The parties’ claim-
construction briefing on this term did not present the
court with the question now before us: whether “specified
connection” excludes embodiments where the intermedi-
ary node can maintain only one “specified connection.”
The district court therefore made no determination on
this issue. For “UL connections,” Apple took a claim-
construction position consistent with the one it takes now,
seeking to construe the term to mean “an uplink connec-
tion between the [intermediary node] and its users.” J.A.
27. Wi-LAN sought a broader construction: “uplink
services.” Id. The court agreed with Apple and adopted
its construction, only modifying the term Apple proposed
to refer to the intermediary node. 2 Id.
2 Apple proposed the construction “an uplink con-
nection between the CPE and its users,” using the term
“CPE,” or consumer premises equipment, that the specifi-
cation uses to describe an immobile intermediary node
that is “positioned at [a] fixed customer site[].” J.A. 27;
’640 patent at 2:7–8. The district court declined to further
limit its construction with the term “CPE.” Instead, it
adopted the construction “an uplink connection between
the wireless subscriber radio unit and its users,” using the
broader term “wireless subscriber radio unit” from the
claims. J.A. 27.
8 WI-LAN USA, INC. v. APPLE INC.
After fact and expert discovery, Apple moved for
summary judgment of noninfringement on both patents.
Apple argued that the claims require multiple connections
between an intermediary node and user devices. It
showed that an iPhone contains only one connection
between a baseband processor and an application proces-
sor. Therefore, in Apple’s view, Wi-LAN’s infringement
theory that an iPhone’s baseband processor is an inter-
mediary node and the phone’s application processor is a
user device could not succeed. Apple’s motion focused on
the claim terms “specified connection” in the ’040 patent
and “UL connection” in the ’640 patent (along with the
term “connection” in claim 6 of the ’640 patent, which Wi-
LAN does not appeal), which Wi-LAN had identified in its
infringement contentions as corresponding to the connec-
tion between an iPhone’s baseband processor and applica-
tion processor. For the ’040 patent, Apple sought a
further construction of “specified connection” to exclude
embodiments where an intermediary node can maintain
only one specified connection. Under this construction,
Wi-LAN’s infringement theory would fail because the
iPhone’s intermediary node (the baseband processor)
would connect to only one user device (the application
processor). For the ’640 patent, Apple argued that the
claims’ requirement of a “plurality” of queues, each corre-
sponding to “one or more UL connections,” could not
encompass a device with only one “UL connection.”
Again, this argument would cause Wi-LAN’s infringement
theory to fail because it points only to a single “UL con-
nection.” In its summary-judgment order, the district
court agreed to consider Apple’s proposal to further con-
strue “specified connection,” construed the term as Apple
proposed, found its constructions of “specified connection”
and “UL connections” to preclude any disputed issues of
material fact on any asserted claim, and entered sum-
mary judgment of noninfringement.
WI-LAN USA, INC. v. APPLE INC. 9
Wi-LAN moved for the district court to reconsider its
grant of summary judgment as to all asserted claims of
the ’040 patent and independent claim 1 and dependent
claim 2 of the ’640 patent. In this motion for reconsidera-
tion, it presented a new infringement theory and sought a
corresponding new construction of the terms “specified
connection” and “UL connections.” 3 It changed the loca-
tion of the ’040 patent’s claimed “specified connections”
and the ’640 patent’s claimed “UL connections”: rather
than mapping them to the connection within the iPhone
between its baseband processor and application processor,
it now mapped them to the connection outside of the
iPhone between the baseband processor and the base
station of the cellular network. It also sought a corre-
sponding new construction where the terms refer to the
connection between the intermediary node and the base
station (between the iPhone’s baseband processor and the
cellular tower). The court mentioned several reasons why
Wi-LAN’s new proposed construction came too late, but it
ultimately considered—and rejected—this construction on
its merits. J.A. 3–5. It therefore declined to reverse its
grant of summary judgment. J.A. 4–5.
Wi-LAN now appeals on both patents. For the ’040
patent, it drops the argument it made in its motion for
reconsideration, instead appealing directly from the
district court’s grant of summary judgment. It claims the
district court erroneously granted summary judgment
because it misconstrued “specified connection” to exclude
embodiments where the intermediary node can maintain
only one “specified connection.” It applies this argument
3 Wi-LAN’s motion for reconsideration also reprised
the argument from its summary-judgment briefing that
the term “specified connection” does not exclude embodi-
ments where the intermediary node is capable of main-
taining only one specified connection.
10 WI-LAN USA, INC. v. APPLE INC.
to each claim it asserted: independent claims 1, 14, and 16
and dependent claims 2, 4, 5, and 15. For the ’640 patent,
it appeals only claims 1 and 2, the two claims on which it
moved for reconsideration below. For these claims, it
makes the argument it made in its motion for reconsider-
ation: that we should construe the term “UL connections”
to refer not to the intermediary node’s connections with
its user devices, but instead to its connection with the
base station.
ANALYSIS
We have jurisdiction over this appeal under 28 U.S.C.
§ 1295(a)(1).
I. Standard of Review
There are two substantive issues before us (along with
a claim of waiver). The parties set out each substantive
issue as involving a claim construction that occurred
outside of the claim-construction phase of the case, one on
summary judgment and one on reconsideration of sum-
mary judgment. We agree.
Because the only substantive issues before us are ones
of claim construction, our review falls entirely under the
Teva standard. Convolve, Inc. v. Compaq Computer
Corp., 812 F.3d 1313, 1317 (Fed. Cir. 2016) (citing Teva
Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 836–38
(2015)). We apply our traditional claim-construction
framework to this review even though the district court
reached these constructions on summary judgment and
reconsideration of summary judgment rather than in the
phase of the case specifically dedicated to claim construc-
tion. See Conoco, Inc. v. Energy & Envtl. Int’l, L.C., 460
F.3d 1349, 1362 (Fed. Cir. 2006) (citing Phillips v. AWH
Corp., 415 F.3d 1303, 1312, 1314–19 (Fed. Cir. 2005) (en
banc)). Under the Teva standard, “the ultimate issue of
the proper construction of a claim should be treated as a
question of law.” 135 S. Ct. at 839. We review any “sub-
WI-LAN USA, INC. v. APPLE INC. 11
sidiary factual findings [on extrinsic evidence] under the
‘clearly erroneous’ standard.” Id. “[W]hen the district
court reviews only evidence intrinsic to the patent (the
patent claims and specifications, along with the patent’s
prosecution history), the judge’s determination will
amount solely to a determination of law, and the Court of
Appeals will review that construction de novo.” Id. at
841. Here, the district court properly based its analysis
entirely on the intrinsic record, and our review is de novo.
See Eidos Display, LLC v. AU Optronics Corp., 779 F.3d
1360, 1364–65 (Fed. Cir. 2015).
II. ’040 Patent: “Specified Connection”
The ’040 patent discloses an intermediary-node archi-
tecture in which an intermediary node repackages data
its user devices send it for more efficient retransmission
to the base station. User devices can transmit data to a
network in digital packets in various different formats,
which the ’040 patent labels “service data units” or
“SDUs.” Id. at 3:34–52. For example, a user on a phone
call might transmit voice data, and one sending an email
might transmit internet-protocol data. Id. In a network
where the base station connects directly to user devices, it
receives these non-uniform packets directly. The varia-
tions in packet format and length create inefficiencies
that limit the amount of data the prior-art base station
could receive. Id. at 3:40–46. The ’040 patent’s interme-
diary node overcomes this problem by repackaging the
various non-uniform service data units into a single,
uniform format that the patent labels a “protocol data
unit” or “PDU” and sends them along to the base station.
Id. at 2:40–49, 3:46–52. The base station thus receives all
incoming data in an efficient, uniform format. The inter-
mediary node engages in the reverse process when relay-
ing data from the base station to its user devices,
receiving data in a uniform format and converting it into
the appropriate formats its user devices require. Id. at
3:46–48.
12 WI-LAN USA, INC. v. APPLE INC.
The parties agree that the claims use the term “speci-
fied connection” to refer to a connection between the
intermediary node and the user device. They dispute
whether the term “specified connection” excludes embod-
iments where an intermediary device can maintain only
one specified connection. Because an iPhone has only one
connection between its application processor and base-
band processor, Wi-LAN contends that the claims can
read on an embodiment where the intermediary node can
maintain only one “specified connection.” Apple, in con-
trast, argues that the district court correctly construed
the term “specified connection” to exclude such an embod-
iment.
We begin our analysis with the words of the claim it-
self as an ordinary artisan would have understood them
at the time of the invention. Phillips, 415 F.3d at 1314.
Although the term “specified connection” in the claims is
singular, the claims’ usage of the term (e.g., “each SDU
being associated with a specified connection”) indicates
that each service data unit—in a claim that contemplates
multiple service data units—is associated with exactly
one “specified connection,” not that the intermediary node
maintains only one “specified connection.” This fact thus
offers no clues as to whether the invention excludes
embodiments incapable of maintaining multiple specified
connections.
Next, we turn to the intrinsic record to determine
whether the context in which the disputed term sits
shines light on its meaning. Id. at 1315. Neither party
argues that the specification explicitly defines the term
“specified connection.” See id. at 1317. In fact, it never
mentions this term. The specification’s consistent de-
scriptions of multiple specified connections, however,
suggest that the patent’s claims do not encompass an
embodiment contrary to these descriptions. For example,
it states that “each [intermediary] node . . . serv[es]
multiple connections for users.” ’040 patent at 4:40–41.
WI-LAN USA, INC. v. APPLE INC. 13
Figure 3 of the patent shows an intermediary node’s
“connection interface” maintaining multiple “user connec-
tion[s]”:
The specification similarly discusses “a plurality of user
connections.” Id. at 6:20; see also, e.g., id. at 4:61–62 (“the
users on [an intermediary node’s] connections”), 6:45
(“user connections”). And it never describes a system with
only one specified connection.
Consistent use of a term in a particular way in the
specification can inform the proper construction of that
term. See, e.g., Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d
1308, 1318 (Fed. Cir. 2014); SkinMedica, Inc. v. Histogen
Inc., 727 F.3d 1187, 1196 (Fed. Cir. 2013). Here, we find
the specification’s consistent references to multiple “speci-
fied connections” to weigh in favor of a construction
excluding embodiments where the intermediary node is
capable of maintaining only one “specified connection.”
We also find the claims’ discussion of allocating
bandwidth based on a specified connection’s priority to
support the district court’s conclusion. Each independent
claim at issue contains a limitation related to allocating
bandwidth based on a specified connection’s priority. ’040
14 WI-LAN USA, INC. v. APPLE INC.
patent at claim 1 (“[the intermediary node] allocate[s]
bandwidth for the specified connection, based on the
priority of the connection”), claim 14 (“bandwidth current-
ly allocated to the specified connection in a current frame
based on the priority associated with the specified connec-
tion”), claim 16 (“the bandwidth amount allocated to the
specified connection in a current frame, the bandwidth
amount being established . . . based on one or more com-
munication parameters . . . including the priority of the
specified connection”). To “allocate” something is to
distribute it among multiple recipients. Thus when the
claims describe allocating bandwidth to a specified con-
nection, they imply that the intermediary node distributes
this bandwidth among multiple specified connections.
The claims further describe this allocation as based on a
specified connection’s “priority.” Priority is a relative
concept: a specified connection only has a “priority” in
comparison to other specified connections’ priorities. The
specification reinforces this conception of “priority” as
necessarily relative. It describes specified connections’
priorities as “high priority,” “mid[ ]priority,” and “lower
priority.” Id. at 13:38–46. “High” and “mid” are relative
words that can be defined only by reference to other
priorities. “Lower” is even more explicitly comparative: as
a matter of basic grammar something cannot be “lower”
without being lower than something else. The claims’ and
specification’s discussion of “allocating” bandwidth to a
specified connection based on its “priority” therefore
supports the conclusion that the district court correctly
construed the term “specified connection” to exclude
embodiments where an intermediary device can maintain
only one specified connection.
Wi-LAN attempts to undercut the district court’s con-
clusion by pointing to instances where the intrinsic record
describes an intermediary node maintaining a single
connection. But Wi-LAN reads these disclosures incor-
rectly. First, it notes that in a dependent claim and the
WI-LAN USA, INC. v. APPLE INC. 15
prosecution history, the patentee refers to the specified
connections with the singular terms “a specified connec-
tion” and “the specified connection.” See id. at claim 7;
J.A. 1917. These uses, however, do not refer to any
scheme where a node maintains a single “specified con-
nection.” Instead, they use the singular to point to one
particular specified connection out of multiple ones. Id.Second, Wi-LAN notes that the patent includes a figure
labeling a portion of a protocol data unit’s header as a
“connection identifier.” See ’040 patent at Fig. 8, 11:31–
32. It claims that this term—using the singular “connec-
tion” rather than the plural “connections”—implies that
the intermediary node maintains only one specified
connection. This argument misapprehends the grammat-
ical role that the word “connection” plays in the term
“connection identifier.” “Connection” in this context is a
noun adjunct modifying “identifier.” Noun adjuncts are
typically singular, whether they refer to single or multiple
objects. For example, a bush with a single rose would be
a “rosebush,” but so would a bush with multiple roses; a
bus taking children to a school would be a “school bus,”
but so would a bus taking children to multiple schools.
Wi-LAN’s argument that an identifier differentiating
between multiple connections must be called a “connec-
tions identifier” would make sense only in a grammatical
system where a child would wait by the “rosesbush” for
the “schools bus” to pick her up. Figure 3 of the ’040
patent demonstrates that the patentee shared our gram-
matical understanding, labeling an interface for multiple
connections a “connection interface” rather than a “con-
nections interface.”
Wi-LAN further argues that, because a preferred em-
bodiment of the claimed invention contains only one
specified connection, a construction excluding this embod-
iment cannot be proper. Wi-LAN points to the provisional
application to which the ’040 patent claims priority, which
refers to a node combining multiple short packets from a
16 WI-LAN USA, INC. v. APPLE INC.
single connection into a larger packet with only one
header in order to save space. J.A. 2120. However, Wi-
LAN cites nothing in the specification of the ’040 patent
disclosing this embodiment. This embodiment therefore
cannot be a preferred embodiment of this patent. In any
event, Wi-LAN is also incorrect that the provisional
application discloses an embodiment with one specified
connection. Instead, the disclosure Wi-LAN cites states
simply that sometimes the node may receive a stream of
data on one of its specified connections and create bun-
dled protocol data units consisting only of data from that
stream. J.A. 2120–21.
Because we credit the specification’s consistent de-
scriptions of intermediary nodes maintaining multiple
connections to user devices and the claims’ and specifica-
tion’s descriptions of “allocat[ing]” bandwidth to a speci-
fied connection based on its “priority,” and because we do
not find Wi-LAN’s arguments against the district court’s
construction persuasive, we agree with the district court
that “specified connection” excludes embodiments where
an intermediary node can maintain only one specified
connection. Wi-LAN bases its appeal of the district
court’s grant of summary judgment solely on this claim-
construction issue. Because we affirm the district court’s
construction, we also affirm its grant of summary judg-
ment of noninfringement.
III. ’640 Patent: “UL Connections”
A. Waiver
We begin with Apple’s claim of waiver. Below, Wi-
LAN argued during the claim-construction phase that the
term “UL Connections” should take the construction
“uplink services.” The intermediary nodes, it explained,
would offer these “uplink services,” which could take the
form of internet traffic, voice-call data, or text messages.
Apple argued that the term should take the construction
“uplink connections between [an intermediary node] and
WI-LAN USA, INC. v. APPLE INC. 17
its users.” The court largely agreed with Apple’s con-
struction, modifying it only to substitute a more generic
term for the intermediary node. J.A. 27. Only after
losing on summary judgment did Wi-LAN first take the
position—inconsistent with both its earlier position and
the district court’s construction—that “UL connection”
refers to the connection between the intermediary node
and the base station. Apple argues on appeal that waiver
bars Wi-LAN’s attempt to change its position, urging us to
reject what it views as Wi-LAN’s attempt to take one
position on claim construction below and, after that
position failed on summary judgment, get another bite at
the proverbial—and in this case literal—Apple by chang-
ing its construction.
When Wi-LAN moved for reconsideration of the
court’s summary-judgment order, the district court recog-
nized this motion as based on a claim construction at odds
with Wi-LAN’s position during the claim-construction
phase. It considered whether this change in construction
came too late and noted several factors suggesting as
much: Wi-LAN had declined to take advantage of earlier
opportunities to challenge the court’s construction, point-
ed to no newly discovered evidence to support its change
of position, and appeared motivated only by its loss on
summary judgment. J.A. 4. But, rather than finding this
new construction barred, the district court proceeded to
analyze its merits. Id.We review procedural issues specific to patent law
under our law and those not specific to patent law under
the regional circuit’s law. Woodrow Woods & Marine
Exhaust Sys., Inc. v. DeAngelo Marine Exhaust, Inc., 692
F.3d 1272, 1278 (Fed. Cir. 2012) (citing O2 Micro Int’l,
Ltd. v. Monolithic Power Sys., 467 F.3d 1355, 1364 (Fed.
Cir. 2006) (in turn citing Sulzer Textil A.G. v. Picanol
N.V., 358 F.3d 1356, 1363 (Fed. Cir. 2004))). Apple’s
waiver argument arose from Wi-LAN’s motion for recon-
sideration—a general procedural motion that would
18 WI-LAN USA, INC. v. APPLE INC.
ordinarily raise no issue specific to patent law. This
particular motion for reconsideration, however, raised a
patent-specific procedural issue: whether Wi-LAN could
amend its claim-construction position at this late stage of
the case. See Nuance Commc’ns v. Abbyy USA Software
House, 813 F.3d 1368, 1373 (Fed. Cir. 2016). We there-
fore consider this issue under our law. We review a
district court’s exercise of its case-management authority
for abuse of discretion, including legal and constitutional
error. Id. at 1372.
We generally support a district court’s case-
management authority to set a schedule for claim con-
struction that requires parties to take positions on vari-
ous dates and holds the parties to these positions. For
example, we found no abuse of discretion in a district
court’s denial of a party’s motion to amend its infringe-
ment contentions based on its finding that the party had
not been diligent in advancing this new theory. O2 Micro,
467 F.3d at 1367. When a party took a position in claim
construction, won on that position, and then attempted to
change that position shortly before trial, we upheld the
district court’s determination that, because no good cause
supported this change in position, the party must main-
tain its initial position. Nuance Commc’ns, 813 F.3d at
1373. When a party stipulated to a particular construc-
tion and then sought a jury instruction inconsistent with
that stipulation, we affirmed the district court’s determi-
nation that it could not do so. Akamai Techs., Inc. v.
Limelight Networks, Inc., 805 F.3d 1368, 1376 (Fed. Cir.
2015). And when, as here, a party raised for the first time
a new infringement argument on a motion for reconsider-
ation of a summary-judgment order, we found no abuse of
discretion in the district court’s denial of that motion.
Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362,
1369 (Fed. Cir. 2014).
We likewise support a district court’s discretion to
permit parties to change their positions over the course of
WI-LAN USA, INC. v. APPLE INC. 19
litigation. We have long held that a district court may
“engage in rolling claim construction, in which the court
revisits and alters its interpretation of the claim terms as
its understanding of the technology evolves.” Conoco, 460
F.3d at 1359 (internal quotation marks and citation
omitted). We have also, for example, upheld a court’s
decision, based on a finding of good cause, to allow a
defendant to amend its invalidity contentions after a
change in the relevant law. Mortg. Grader, Inc. v. First
Choice Loan Servs., 811 F.3d 1314, 1320–23 (Fed. Cir.
2016).
Here, the district court used its case-management dis-
cretion to decline to find Wi-LAN’s new construction
barred and instead to make a merits determination. We
find that it did not abuse its discretion in deciding to
resolve Wi-LAN’s motion for reconsideration on its merits.
We therefore find no waiver.
B. The Claim Construction’s Merits
The ’640 patent describes a way to more efficiently al-
locate uplink bandwidth in a network with an intermedi-
ary node. Uplink bandwidth, in this context, refers to the
bandwidth available to the network to transmit data from
user devices to the base station. ’640 patent at 1:49–52.
A network where multiple user devices share the same
frequency bands must have an organized system to de-
termine which user device may transmit data to the base
station in a given frequency band at a given time. Id. at
1:41–45, 5:61–6:2. Otherwise, two devices could attempt
to transmit data on the same frequency band at the same
time, causing the base station to lose the data from one or
both user devices. Id. A network must allocate its con-
nected devices opportunities to send data in a way that
avoids this type of overlap. Id. at 5:66–6:2. In doing so, it
can consider the various user devices’ quality-of-service
(QoS) needs. Id. at 4:51–54. For example, a user on a
telephone call might have a high-priority quality-of-
20 WI-LAN USA, INC. v. APPLE INC.
service need that would require consistent access to the
network to avoid a delay in transmission that could cause
the call to skip or lag. Id. at 7:9–12. A user attempting to
send a file by email, in contrast, would not share this
high-priority need for immediate or consistent access to
the network and could instead wait for an opportunity to
send all of her data in a short burst. Id. at 6:13–16.
In a wireless network where each user device connects
directly to the base station, each user device requests
bandwidth from the base station, indicating the amount of
data it has to upload and its quality-of-service needs. The
base station processes these requests and fairly distrib-
utes bandwidth among user devices. The ’640 patent
describes an invention that uses intermediary nodes to
make this process more efficient. Rather than sending
requests for bandwidth directly to the base station, users
in the claimed network first send these requests to the
network’s intermediary nodes. Id. at 2:16–19. The in-
termediary nodes then bundle the users’ requests and
transmit a single request for bandwidth to the base
station. Id. The base station considers the bundled
requests from each of its intermediary nodes, determines
how to fairly allocate bandwidth among the intermediary
nodes, and allocates a grant of bandwidth to each node.
Id. at 6:17–18, 19:9–25. Each node considers the needs of
each user device it serves, determines how to fairly allo-
cate the bandwidth it has been granted among its users,
and allocates a grant of bandwidth to each user. Id. at
4:34–36.
This system confers three primary benefits over the
prior art. First, it decreases the amount of bandwidth the
base station must devote to receiving requests for band-
width. In a network with no intermediary nodes, the base
station would need to field separate requests from each
individual user device, but in this network architecture
with intermediary nodes, it receives a smaller number of
bundled requests from its intermediary nodes. Id. at
WI-LAN USA, INC. v. APPLE INC. 21
2:47–54, 5:56–61. This smaller number of requests takes
up less bandwidth, allowing the base station to conserve
this scarce resource. Id. at 4:43–46. Second, and related-
ly, the base station uses less processing power in handling
this smaller number of requests. Id. at 4:41–43. Third, it
allows an intermediary node to change its allocation of
bandwidth on the fly when it receives higher-priority data
while it is waiting for a bandwidth allocation, allowing
“for more flexibility at the [intermediary node] and more
intelligent allocation of the limited bandwidth.” J.A.
1406.
The dispute before us centers on the term “UL connec-
tions.” The parties agree that “UL” in this term means
“uplink.” “Uplink” refers to a direction of data flow from
user devices through intermediary nodes to the base
station; “downlink,” by contrast, refers to the direction of
data flow from the base station through intermediary
nodes to user devices. ’640 patent at 1:49–52. The term
“UL connections” thus refers to some set of connections in
the uplink direction.
The term appears twice in the claims at issue. Inde-
pendent claim 1 states that the intermediary node queues
“data pertaining to one or more UL connections with
similar QoS” and “allocates the UL bandwidth grant to
the one or more UL connections based on QoS priority.”
This claim thus sets out a scheme where the intermediary
node creates various queues based on quality-of-service
priority, each queue “pertaining to one or more UL con-
nections.” Then, once it receives a grant of uplink band-
width from the base station, it allocates that grant, based
on quality-of-service priority, to its “UL connections.”
The district court construed “UL connections” to refer
to the connections between the intermediary node and its
user devices. J.A. 27 (construing “UL connection” as “an
uplink connection between the [intermediary node] and
its users”). It maintained this construction on Wi-LAN’s
22 WI-LAN USA, INC. v. APPLE INC.
motion that it reconsider its summary-judgment order.
J.A. 5. Under this construction, claim 1 describes the
intermediary node receiving data from its user devices on
“UL connections,” placing that data into queues based on
its quality-of-service priority, receiving a grant of uplink
bandwidth from the base station, and then allocating that
bandwidth to its various user devices based on the data’s
priority level.
Wi-LAN urges a construction where “UL connections”
refers to the connection between an intermediary node
and the base station. Under this construction, claim 1
describes an intermediary node receiving data from its
user devices, and placing that data into queues “pertain-
ing to” its connection to the base station “with similar
QoS.” The intermediary node would then receive a grant
of uplink bandwidth from the base station and allocate
this grant to its connection with the base station “based
on QoS priority.” We find this claim language confusing
in the context of Wi-LAN’s construction, but Wi-LAN’s
position appears to be that a node has multiple parallel
“connections” to the base station, each associated with a
particular quality of service.
The parties thus present a choice: the term “UL con-
nections” refers either to the connection between a user
device and its intermediary node or to the connection
between an intermediary node and its base station. We
agree that this term can refer to only one of these two
connections. The question we must resolve is therefore
which of these two connections makes the most sense in
light of the evidence before us.
Because neither party argues that the plain meaning
of “UL connections” helps our analysis, we begin by look-
ing to the specification to determine whether the patentee
explicitly defined the term. Phillips, 415 F.3d at 1317.
Wi-LAN argues that the specification defines “UL connec-
tions” when it states: “Transmissions from the base
WI-LAN USA, INC. v. APPLE INC. 23
station to the subscriber unit are commonly referred to as
‘downlink’ transmissions. Transmissions from the sub-
scriber unit to the base station are commonly referred to
as ‘uplink’ transmissions.” ’640 patent at 1:49–52. This
definition establishes that “uplink” and “downlink” de-
scribe the direction data flows through the network, but it
does nothing to define where in the network the “UL
connections” are located. In fact, the specification never
uses the term “UL connections.” We conclude that the
patentee did not explicitly define the term “UL connec-
tions” in the specification.
We turn next to viewing the patent as a whole as well
as the prosecution history to glean clues as to claim term’s
meaning. Phillips, 415 F.3d at 1315. This context re-
quires us to construe this term to refer to the intermedi-
ary node’s connections with user devices, not the base
station, for three reasons: this is the only construction
that squares with (1) the scheme the patent sets out
where the base station allocates bandwidth to its inter-
mediary-node connections and the intermediary nodes
allocate bandwidth to their user connections, (2) the
network architecture the specification describes, and (3)
representations Wi-LAN made in prosecution.
1. Allocating Bandwidth
The specification describes the bandwidth-allocation
process as consisting of a number of steps. First, a user
device determines how much data it has to transmit to
the network and with what quality-of-service needs. ’640
patent at 2:16–19, 19:13–16. It next communicates these
requirements to its intermediary node. Id. The interme-
diary node aggregates the various requests for uplink
bandwidth it has received from its user devices, and it
communicates this aggregated request to the base station.
Id. The base station then aggregates all requests from
the intermediary nodes it serves and allocates the band-
width available to it among these intermediary nodes. Id.
24 WI-LAN USA, INC. v. APPLE INC.
at 6:17–18. The base station attempts to grant each
intermediary node all of the uplink bandwidth it request-
ed, but if too little bandwidth is available, it will take into
account the quality-of-service needs associated with the
bandwidth requests and use fairness algorithms to dis-
tribute the available bandwidth among its intermediary
nodes. Id. at 18:64–19:2, 19:18–21. Once it has allocated
the available uplink bandwidth between its various
intermediary nodes, it informs each intermediary node of
its allocation. Id. at 19:23–27. Each intermediary node
then allocates this bandwidth among its user devices. Id.
at 4:34–36. If the intermediary node receives enough
uplink bandwidth to accommodate all of the requests from
its user devices, it will distribute to each user device all of
the bandwidth it seeks. If it does not receive enough
bandwidth to accommodate its users’ needs, it performs a
bandwidth-allocation process to its user devices similar to
the base station’s allocation process to its intermediary
nodes, considering the quality-of-service needs associated
with its users’ bandwidth requests and using fairness
algorithms to distribute the limited bandwidth the base
station allocated it. Id. at 19:36–39. Specifically, it first
distributes bandwidth to its user services with the highest
quality-of-service needs. Id. at 22:11–14. “For each
remaining QoS, . . . the [intermediary node] determines if
there is bandwidth sufficient to satisfy the entire need of
the QoS queue.” Id. at 22:15–17. “If so, the [intermediary
node] allocates the required bandwidth.” Id. at 22:17–18.
“Otherwise, if there is not bandwidth sufficient to satisfy
the queue, the [intermediary node uses a] queue-specific
fairness algorithm” to determine how to fairly distribute
the limited available bandwidth within the queue. Id. at
22:18–20. For example, under “[t]he round robin fairness
algorithm,” “[c]onnections that did not receive bandwidth
are given priority the next time the insufficient band-
width condition exists.” Id. at 20:60–67. By the time the
intermediary node receives the base station’s bandwidth
allocation, the intermediary node may have received new,
WI-LAN USA, INC. v. APPLE INC. 25
higher-priority data from its user devices; if this is the
case, it is free to allocate some of the uplink bandwidth it
received for lower-priority data to transmit this new
higher-priority data instead. Id. at 19:29–31.
We derive two significant facts from this description
of allocation. First, the specification unambiguously
describes an allocation scheme where the base station has
sole responsibility for allocating bandwidth between itself
and the intermediary nodes, and an intermediary node
has sole responsibility for allocating bandwidth between
itself and its users. Id. at 4:34–36, 6:17–18, 18:40–42,
18:64–19:2, 19:18–21, 19:36–39, 22:11–20. Because the
claims describe “UL connections” as connections to which
the intermediary node—not the base station—allocates
bandwidth, this first fact suggests that these connections
are the ones between the intermediary node and its users.
Second, the specification describes a process—where the
intermediary node sometimes allocates no bandwidth to a
“UL connection”—that makes sense only under Apple’s
construction. The specification makes clear that band-
width between the base station and its intermediary
nodes is a scarce resource that should not be wasted.
When the intermediary node has more data in its queues
than it can transmit in its limited available uplink band-
width to the base station, it reacts to this scarcity by
allocating some of its connections a block of bandwidth
until it reaches a maximum allocation and then allocating
no bandwidth to its remaining connections. It then makes
up for allocating no bandwidth to these connections by
placing them first in line—within their quality-of-service
category—the next time it allocates bandwidth. The
claim language makes clear that an intermediary node
allocates bandwidth only to its “UL connections,” so this
description of allocating no bandwidth must mean that,
whatever a “UL connection” is, it is something to which
the intermediary node may allocate no bandwidth when
attempting to make best use of limited uplink bandwidth
26 WI-LAN USA, INC. v. APPLE INC.
to the base station. Apple’s construction of “UL connec-
tion” is consistent with this disclosed allocation scheme
because, when the intermediary node has more data in its
queues than it can upload to the base station, it will be
unable to upload data from all user devices and thus will
have to choose particular “UL connections” to particular
user devices that will not have their data uploaded. It
will compensate for failing to upload these particular
devices’ data by prioritizing their “UL connections” above
all other connections of their quality of service the next
time it allocates bandwidth. By contrast, Wi-LAN’s
construction, where “UL connections” refers to a connec-
tion between an intermediary node and its base station, is
incompatible with the specification. Under that construc-
tion, when an intermediary node has more data in its
queues than it can upload to the base station, it responds
by allocating no data to a “UL connection” to the base
station and then prioritizing this “UL connection” to the
base station the next time it allocates bandwidth. But it
does not make sense for the intermediary node to decline
to transmit data to the base station on a “UL connection”
when its goal is to maximize a limited grant of bandwidth
from the base station. Nor does it make sense to priori-
tize that “UL connection” above others of its quality of
service the next time the intermediary node allocates
bandwidth. This second fact, too, thus supports the
district court’s construction.
2. The Network’s Architecture
The claims’ clear statement that an intermediary
node maintains multiple “UL connections,” coupled with
the specification’s description of a network architecture
where an intermediary node maintains a connection to a
base station and multiple connections to its user devices,
suggests that “UL connections” refers to the connections
between the intermediary node and its users.
WI-LAN USA, INC. v. APPLE INC. 27
Whatever definition of “UL connections” we take, the
claim language makes clear that there must be multiple
“UL connections.” The claims explain that an intermedi-
ary node “maintains a plurality of queues, each queue for
data pertaining to one or more UL connections.” That is,
the claimed intermediary device must be capable of
supporting multiple queues, each potentially correspond-
ing to multiple “UL connections.” Claim 5, which is not
before us but depends from claim 1, also describes the
“UL connections” claimed in claim 1 as consisting of more
than one connection, referring to them as “the plurality of
UL connections.”
The court construed the claim term the ’640 patent
uses to refer to an intermediary node—“wireless subscrib-
er radio unit”—to define an intermediary node as a “mod-
ule that receives UL bandwidth from a base station, and
allocates the bandwidth across its user connections.” J.A.
27. Neither party appeals this construction, which makes
clear that each intermediary node connects to one base
station and multiple users; we must therefore take that
fact as true. The intrinsic record is consistent with this
undisputed fact. See ’640 patent at Fig. 1, 2:6–8. For
instance, it states that, for communications between the
base station and its intermediary nodes, “[t]he base
station is the only transmitter operating in the downlink
direction.” Id. at 6:30–32, 42–43. And it uses the similar-
ly singular language “the base station” and “the uplink” to
describe a single base station receiving transmissions on a
single uplink connection. Id. at 13:16–18 (“The [interme-
diary node] will begin transmitting data to the base
station over the uplink . . . .”). These statements from the
specification, along with the undisputed construction of
“wireless subscriber radio unit,” suggest that the inter-
mediary node maintains a connection with one base
station and multiple connections with multiple users.
28 WI-LAN USA, INC. v. APPLE INC.
3. The Prosecution History
Wi-LAN admits that it cannot show that Apple in-
fringes claim 6 of the ’640 patent, and it does not appeal
the district court’s grant of summary judgment of nonin-
fringement on that claim. But when attempting to over-
come a prior-art rejection during prosecution, it tied
important language now in claim 1 to parallel language in
the application claim that would become claim 6. That
statement tying these two claims together is inconsistent
with the position it now takes. A patentee cannot make
representations about claim language during prosecution
to avoid prior art and then escape these representations
when trying to show infringement. See Convolve, 812
F.3d at 1324–25. We find these statements to be particu-
larly telling evidence against the construction Wi-LAN
now seeks.
Claim 6 contains similar wording to claim 1, using the
term “connections” instead of “UL connections.” Compare
’640 patent, claim 1 (“wherein the wireless subscriber
radio unit allocates the UL bandwidth grant to the one or
more UL connections based on QoS priority”), with claim
6 (“wherein the wireless subscriber radio unit allocates
the UL bandwidth grant to the one or more of the plurali-
ty of connections based on QoS connection priority”).
Claim 6, however, makes explicit that its “connections”
are between an intermediary node and its users. It
describes the uplink queue that the intermediary node
maintains: “the UL queue comprises traffic with similar
quality of service (QoS) received on a plurality of connec-
tions.” That is, this queue consists of uplink data that the
intermediary node “received on a plurality of connec-
tions.” Uplink data, by definition, can only flow in one
direction: from user devices through the intermediary
node to the base station. Therefore uplink data that the
intermediary node “received on a . . . connection[]” must
have come from a user device, and a “connection”—for the
WI-LAN USA, INC. v. APPLE INC. 29
purposes of claim 6—must be between an intermediary
node and a user device.
We may appropriately consider similar claim termi-
nology in claim 6 in determining how best to understand
claim 1 because Wi-LAN made a representation during
prosecution equating the relevant language in the two
claims. The examiner had rejected its claims over refer-
ences including one disclosing mobile units that he read
onto the claimed intermediary node. J.A. 1357. Wi-LAN
distinguished this reference, arguing that it “use[d] the
term ‘connection’ to apply to logical connections between
the base station and mobile units.” Id. In Wi-LAN’s view,
that reference therefore did not “address issues related to
the connections of a[n intermediary node],” which are not
with the base station but instead are with user devices. It
tied this argument to the language in claim 6 that re-
quires its claimed “connection” to be between an interme-
diary node and its user devices. Id. (“[The prior-art
reference] does not teach or suggest a subscriber station
having a UL queue that is filled from a plurality of con-
nections . . . .”). Wi-LAN then stated that “[t]his same
argument also applies to claim 2.” Id. Application claim
2 as then current read: “A method as claimed in claim 1,
wherein the wireless subscriber radio unit maintains a
plurality of queues, each queue for grouping data pertain-
ing to connections with similar QoS.” Response to Office
Action, U.S. Patent App. No. 12/645,937, at 2 (Mar. 31,
2011). During prosecution, Wi-LAN imported this limita-
tion from application claim 2 into issued claim 1, only
modifying it to substitute “UL connections” for “connec-
tions.” See claim 1 (“wherein the wireless subscriber
radio unit maintains a plurality of queues, each queue for
data pertaining to one or more UL connections with
similar QoS”). The representation the patentee made
about application claim 2 continues to apply after Wi-
LAN imported its language into issued claim 1. See Watts
v. XL Sys., 232 F.3d 877, 883–84 (Fed. Cir. 2000) (holding
30 WI-LAN USA, INC. v. APPLE INC.
that a patentee’s representation about claim language
limits that language even if it is later deleted and added
elsewhere). Wi-LAN is therefore bound here by its repre-
sentation to the examiner that the language of application
claim 2 limits the claimed “connections” to those between
an intermediary node and its user devices.
Wi-LAN makes a claim-differentiation counterargu-
ment that we should not consider claim 6 in construing
claim 1 because the patentee’s determination to use
different terms—“UL connections” in claim 1 and “connec-
tions” in claim 6—implies an intent to establish different
meanings for these terms. The doctrine of claim differen-
tiation provides a presumption that differently worded
claims cover different claim scope. This doctrine finds
root in the legal canon of construction against superfluity.
A construction that would cause two differently worded
claims to cover exactly the same claim scope would render
one of the claims superfluous, so we apply a presumption
against such constructions.
“Claim differentiation is a guide, not a rigid rule.”
Marine Polymer Techs., Inc. v. HemCon, Inc., 672 F.3d
1350, 1359 (Fed. Cir. 2012) (quoting Laitram Corp. v.
Rexnord, Inc., 939 F.2d 1533, 1538 (Fed. Cir. 1991)). “It is
not unusual that separate claims may define the inven-
tion using different terminology, especially where (as
here) independent claims are involved.” Mycogen Plant
Sci., Inc. v. Monsanto Co., 243 F.3d 1316, 1329 (Fed. Cir.
2001) (quoting Hormone Research Found., Inc. v. Genen-
tech, Inc., 904 F.2d 1558, 1567 n.15 (Fed. Cir. 1990)).
Claim differentiation cannot “overcome . . . a contrary
construction dictated by the written description or prose-
cution history.” Marine Polymer, 672 F.3d at 1359 (cita-
tions omitted). Nor can claim differentiation apply
untethered from the reasonable meaning of the difference
in claim language on which it rests. See, e.g., Curtiss-
Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374,
1379 (Fed. Cir. 2006) (rejecting a district court’s construc-
WI-LAN USA, INC. v. APPLE INC. 31
tion under claim differentiation that “render[ed the]
limitation nearly meaningless”); Nystrom v. Trex Co., 424
F.3d 1136, 1143 (Fed. Cir. 2005) (rejecting a claim-
differentiation argument that the term “board” must
encompass more than just “wood cut from a log,” because
“[a]n examination of the term ‘board’ in the context of the
written description and prosecution history . . . leads to
the conclusion that the term ‘board’ must be limited to
wood cut from a log”); see also Moskal v. United States,
498 U.S. 103, 120–21 (1990) (Scalia, J., dissenting) (not-
ing that the canon of construction against superfluity is
“no justification for extruding an unnatural meaning out
of” a term in a statute); Public Citizen, Inc. v. HHS, 332
F.3d 654, 665 (D.C. Cir. 2003) (determining that Con-
gress’s use of different words in sections of a statute did
not imply different scope because there was no relevant
difference between those words’ meanings). Although we
might see some significance in the patentee’s decision to
modify “connections” with “UL” in claim 1 but not in claim
6, that significance must be grounded in reasonable
meanings of the term “UL.” The specification makes clear
that “UL” refers to traffic traveling in the uplink, rather
than downlink, direction. ’640 patent at 1:49–52. Be-
cause “UL” can reasonably relate only to the direction
traffic flows through a link, not the location of the link in
a network, we find Wi-LAN’s claim-differentiation argu-
ment unpersuasive, and certainly not strong enough to
overcome the patentee’s statements we identify above
equating language in claims 1 and 6.
Wi-LAN also uses the prosecution history to urge its
own interpretation of “UL connections.” It cites a portion
of the prosecution history to claim that the examiner read
the claimed “UL connections” onto a connection in a prior-
art reference between a base station and a user device.
See J.A. 1271, 1384, 1536, 1616–17. As an initial matter,
Wi-LAN’s reliance on the examiner’s interpretation of this
term is weakened by statements the examiner made
32 WI-LAN USA, INC. v. APPLE INC.
during prosecution candidly admitting confusion with the
patentee’s wording of its claims. Earlier in prosecution,
he noted that he found the wording of the claim “confus-
ing” with respect to whether the intermediary node relays
data from other devices. J.A. 1240. And after making the
statements Wi-LAN cites to us, the examiner stated that
he “initially had difficulty understanding the applicant’s
inventive concept since the claims were highly confusing
with regard to the basic operation of the system.” J.A.
5173. We accordingly give little weight to the statements
Wi-LAN cites. We also note that Wi-LAN refers us to an
interpretation of the term “UL connections” that the
examiner made when the term appeared in a different
context in a different version of the claims. Our construc-
tion of the term here depends significantly on the context
in which it appears in the current claims; the examiner’s
contrary construction in a different context is of limited
materiality.
Faced with a choice between two possible understand-
ings of “UL connections,” we reject Wi-LAN’s proposed
construction, which conflicts with (1) the bandwidth-
allocation scheme the patent sets out, (2) the patent’s
description of a network architecture where the interme-
diary node maintaining one connection with the base
station and multiple connections with its user devices,
and (3) statements Wi-LAN made in prosecution. In-
stead, we agree with the district court’s construction of
“UL connections” as corresponding to the connections
between the intermediary node and its user devices. Wi-
LAN does not claim any other source of error with regard
to the ’640 patent beyond this construction. We therefore
also affirm the district court’s grant of summary judgment
of noninfringement.
CONCLUSION
We affirm the district court’s construction of “specified
connection” to exclude embodiments where an intermedi-
WI-LAN USA, INC. v. APPLE INC. 33
ary device can maintain only one specified connection.
We reject Apple’s argument that Wi-LAN waived the new
construction of “UL connections” that it raised for the first
time on its motion for reconsideration of summary judg-
ment. We affirm the district court’s construction of “UL
connections.” Because we affirm both constructions
against Wi-LAN’s challenges, we also affirm the district
court’s grant of summary judgment of noninfringement.
AFFIRMED
COSTS
No costs.