13-10-31 Samsung Opening Brief in Appeal of ITC-794 Ruling

8/14/2019 13-10-31 Samsung Opening Brief in Appeal of ITC-794 Ruling

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NONCONFIDENTIAL

2013-1519

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

SAMSUNG ELECTRONICS CO., LTD and SAMSUNGTELECOMMUNICATIONS AMERICA, LLC,

Appellants,v.

INTERNATIONAL TRADE COMMISSION,

Appellee,

and

APPLE, INC.

Intervenor.

On Appeal from the United States International Trade CommissionInvestigation No. 337-TA-794

APPELLANTSOPENING BRIEF

Charles K. Verhoeven

QUINN EMANUEL URQUHART&SULLIVAN,LLP

50 California St., 22ndFloorSan Francisco, CA 94111

(415) 875-6600

Kevin P. JohnsonVictoria F. Maroulis

QUINN EMANUEL URQUHART&SULLIVAN,LLP

555 Twin Dolphin Dr., 5thFloor

Redwood Shores, CA 94065

(650) 801-5000

Alan L. WhitehurstDerek L. ShafferMarissa R. DuccaQUINN EMANUEL URQUHART&SULLIVAN,LLP1299 Pennsylvania Ave, NW #825Washington D.C. 20004(202-538-8109

Attorneys for Appellants SamsungElectronics Co., Ltd. and SamsungTelecommunications America, LLC

Case: 13-1519 Document: 48-1 Page: 1 Filed: 10/31/2013


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CERTIFICATE OF INTEREST

Counsel for Appellants certifies the following:

1. The full name of every party or amicus represented by me is:

Samsung Electronics Co., Ltd., and Samsung Telecommunications America, LLC

2. The name of the real party in interest (if the party named in the

caption is not the real party in interest) represented by me is:

N/A

3. All parent corporations and any publicly held companies that own

10 percent or more of the stock of the party or amicus curiae represented by

me are: Samsung Telecommunications America, LLC (STA) is a wholly-

owned subsidiary of Samsung Electronics America, Inc. (SEA), which is a

wholly-owned subsidiary of Samsung Electronics Co., Ltd. (SEC). SEC is not

owned by any parent corporation and no other publicly held corporation owns 10%

or more of its stock. No other publicly held corporation owns 10% or more of

STAs stock.

4. The names of all law firms and the partners or associates that

appeared for the party or amicus now represented by me in the trial court or

are expected to appear in this court are:

Quinn Emanuel Urquhart & Sullivan, LLP: William Adams, Anthony Alden,

Carl Anderson, Wayne Alexander, Robert Becher, Marc Becker, Albert Bedecarre,



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Kristen Bird, Todd Briggs, Paul Brinkman, Margret Caruso, Jon Cederberg, John

D'Amato, Marissa Ducca, David Elsberg, Susan Estrich, Michael Fazio, Ryan

Goldstein, John Gordon, Gabriel Gross, Eric Huang, Diane Hutnyan, Kevin

Johnson, Rachel Kassabian, Scott Kidman, Alex Lasher, Duane Lyons, Victoria

Maroulis, Joseph Milowic, Randa Osman, Thomas Pease, William Price, B. Dylan

Proctor, John Quinn, Sascha Rand, Derek L. Shaffer, Patrick Shields, Jon Steiger,

Kathleen Sullivan, Amar Thakur, Charles Verhoeven, Eric Wall, Matthew Warren,

Scott Watson, Alan Whitehurst, Robert Wilson, Michael Zeller, Melissa Dalziel,

Sahily Feliciano, Peter Klivans, Scott Florance, Jessica Hon, Lily Lu, Christopher

Price, Jessica Rose, Daniel Volkmuth, Marc Weinstein, Bruce Zisser, Anne

Abramowitz, Deepa Acharya, Jolie Apicella, Brett Arnold, Joseph Ashby,

Abhishek Bapna, Katharine Barach, Christopher Barker, Charles Basinger, Alex

Baxter, Adam J. (AJ) Bedel, Adam Bedel, Karen Bobrow, Heather Belville

McCarthy, Alex Binder, Kara Borden, Jason Calabro, Adam S. Cashman, Melissa

Chan, Keunwoo Choi, Samantha Crane, David Currie, Derek Doherty, Samuel

Drezdzon, Guy Eddon, Patrick Fitch, Brad Goldberg, Augustus Golden, Michael

Gray, Ron Hagiz, Scott Hall, Claire Hausman, David Hecht, Ulana Holubec,

Alexander Hu, Sara Jenkins, Shaina Johnson, Rachel Juarez, James Judah, Jordan

Kaericher, Aaron Kaufman, Sung Hoon Kim, Jason Lake, Valerie Lozano,

Roxanna Manuel, Joseph Martin, Geneva McDaniel, Mary McNeill, Lauren



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Misztal, Anna Neill, Gopi Panchapakesan, Nila Parndigamage, Michael Peng,

Ketan Petal, Daniel Posner, Maxim Price, James Razick, Dane Reinstedt, Shahin

Rezvani, Robert Rogoyski, David Rudolph, Michael Sadowitz, Jason Schaengold,

Patrick Schmidt, David Shaul, Stephen Smith, Christopher Stretch, Nathan Sun,

Derek Tang, Mark Tung, Curran Walker, James Ward, Thomas Watson, James

Webster, Kelly Winslow, Anthony Zappin, James Kim, Paul Lee, Peter Park, D.

Frederick Sparks, Min Yu.

Steptoe and Johnson, LLP: Charles F. Schill, Jamie B. Beaber, Tiffany A.

Miller, Stephanie Schonewald, Paul Gennari, Amanda Adams, Paul McAdams,

John Caracappa, Thomas Pasternak, Huan-Yi Lin, Elizabeth Johnson, and Paul

Lall.

Williams and Connolly LLP: Samuel Bryant Davidoff, Stanley E. Fisher,

Ari S. Zymelman, Kevin Hardy

Sheppard Mullin Richter & Hampton LLP: Gary L. Halling, Mona Solouki,

David R. Garcia

Hopenfeld Singer Rice & Saito LLP: Benjamin L. Singer, Marina N. Saito

Dated: October 31, 2013 Respectfully submitted,

By: /s/ Charles K. Verhoeven______Charles K. VerhoevenQUINN EMANUEL URQUHART& SULLIVAN, LLP50 California Street, 22ndFloor



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San Francisco, CA 94111Telephone: (415) 875-6600Facsimile: (415) [email protected] for Appellants



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III. ASSERTED CLAIMS ................................................................................... 30IV. APPLES LATE DISCLOSURE OF ITS

ARGUMENT ................................................................................................. 32SUMMARY OF THE ARGUMENT ...................................................................... 36STANDARD OF REVIEW ..................................................................................... 38ARGUMENT ........................................................................................................... 39I. THE COMMISSION ERRED BY CONSTRUING EXTRACTING

A 60-BIT RATE-MATCHED BLOCK TO EXCLUDE PRODUCTSTHAT

.................................................................................................... 39A. Contrary to the Commissions Construction, Extracting a 60-

Bit Rate-matched Block Does Not Exclude

.................................................................................................... 401. Nothing in the Specification or File History Precludes the

............................................................ 412. The Inventors Used

................................................................................. 463. The ALJs Definition Of Extracting, to Select

(Excerpts) Or Copy Out Or Cite, Is Not Supported By

The Intrinsic Or Extrinsic Evidence ......................................... 48(a) The Adoption of a Dictionary Definition Without

Consulting the Intrinsic Record is Reversible Error ...... 48(b) The Chosen Dictionary Definition Contradicts the

Intrinsic Record .............................................................. 49B. Under the Correct Construction, Apples Products Extract a

60-Bit Rate-Matched Block ............................................................... 51

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C. Apples Products Infringe the Remaining Limitations of Claims9 and 13 As Correctly Construed ........................................................ 52

D. Samsung has Satisfied the Domestic Industry Requirement OfSection 337 .......................................................................................... 54

II. THE COMMISSION ERRED BY IGNORING EVIDENCE THATAPPLES PRODUCTS

SUCH THAT THEY FALL WITHINTHE COMMISSIONS CONSTRUCTION OF EXTRACTING A

60-BIT RATE-MATCHED BLOCK.......................................................... 54A. The Commission Disregarded Key Portions of Dr. Mins

Testimony that Confirm His View that Apples Products

..................................................................... 55B. The Commissions Construction Of Rate-Matched Block

Does Not Require The Extracted 60 Bits To Be Contiguous...... 59III. THE COMMISSION ERRED BY EMBRACING THE ALJS

PATTERN OF EVIDENTIARY RULINGS THAT AFFORDEDAPPLE THE BENEFIT OF BELATED NONINFRINGEMENT

ARGUMENTS WHILE DENYING SAMSUNG THEOPPORTUNITY TO RESPOND .................................................................. 60A. The ALJ Abused His Discretion by Not Permitting Samsung to

Submit a Rebuttal Expert Report to Rebut Apples Late-Disclosed Noninfringement Arguments .............................................. 61

B. The ALJ Abused His Discretion By Permitting Apple to Cross-Examine Dr. Min Outside The Scope of Direct Examination ............ 63

C. The ALJ Further Abused His Discretion By ProhibitingSamsung From Asking Its Own Responsive Questions of Dr.Min ...................................................................................................... 64

D. The ALJ and Commission Abused Their Discretion ByConsidering Apples Late-Disclosed Noninfringement

Arguments ........................................................................................... 65CONCLUSION ........................................................................................................ 67

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ADDENDUM1

ADDENDUM VOLUME 1

Notice of the Commissions Final Determination Finding a Violation

of Section 337; Issuance of a Limited Exclusion Order and Ceaseand Desist Order; Termination of the Investigation, Dated June 4,2013 ....................................................................................................... A1-16

Commission Opinion, Dated June 4, 2013 ................................................. A17-178

Notice Regarding Issuance of Final Initial Determination and

Recommended Determination on Remedy and Bond, DatedSeptember 14, 2012 .............................................................................. A179-186

U.S. Patent No. 7,486,644, Dated February 3, 2009 .................................. A6002-022

ADDENDUM VOLUME 2

Initial Determination on Violation of Section 337 and Recommended

Determination on Remedy and Bond, Dated September 14, 2012 ...... A187-830

Material has been deleted from pages vi-viii, 2-4, 6, 13, 15-36, 39-41, 43-44, 46-48, 51-6, and 6-6of the Non-Confidential Appellants Opening Brief. This

material is deemed confidential business information pursuant to 19 U.S.C.

1337(n) and 19 C.F.R. 210.5, and pursuant to the Protective Order enteredAugust 4, 2011. The material omitted from these pages contains confidential

deposition and hearing testimony, confidential business information, andconfidential patent application information of Samsung, Apple, third party Intel,

and third party Qualcomm.

1 The Addendum is bound as two separate volumes.



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TABLE OF AUTHORITIES

Page

Cases

AIA Eng'g Ltd. v. Magotteaux Int'l. S/A,

657 F.3d 1264 (Fed. Cir. 2011) .................................................................... 46, 51

Amkor Techs., Inc. v. Int'l Trade Comm'n,

692 F.3d 1250 (Fed. Cir. 2012) .......................................................................... 38

Arcelormittal France v. AK Steel Corp.,700 F.3d 1314 (Fed. Cit. 2012) ........................................................................... 42

Aventis Pharma S.A. v. Hospira, Inc.,

675 F.3d 1324 (Fed. Cir. 2012) .......................................................................... 41

Axiom Res. Mgmt., Inc. v. United States,564 F.3d 1374 (Fed. Cir. 2009) .......................................................................... 39

Bio-Tech. Gen. Corp. v. Genentech, Inc.,80 F.3d 1553 (Fed. Cir. 1996) ............................................................................ 39

Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp.,320 F.3d 1339 (Fed. Cir. 2003) .......................................................................... 42

Crystal Semiconductor Corp. v. TriTech Microelectronics Intl., Inc.,246 F.3d 1336 (Fed. Cir. 2001) .......................................................................... 42

Cybor Corp. v. FAS Techs., Inc.,

138 F.3d 1448 (Fed. Cir. 1998) .................................................................... 38, 46

Exergen Corp. v. Wal-Mart Stores, Inc.,575 F.3d 1312 (Fed. Cir. 2009) .......................................................................... 42

Hoechst Celanese Corp. v. BP Chemicals Ltd.,78 F.3d 1575 (Fed. Cir. 1996) ............................................................................ 49

Hormone Research Found., Inc. v. Genentech, Inc.904 F.2d 1558 (Fed. Cir. 1990) .......................................................................... 49

Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,

381 F.3d 1111 (Fed. Cir. 2004) .......................................................................... 41



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Interactive Gift Express, Inc. v. Compuserve, Inc.,

256 F.3d 1323 (Fed. Cir. 2001) .......................................................................... 41

Invitrogen Corp. v. Biocrest Mfg., L.P.,327 F.3d 1364 (Fed. Cir. 2003) .......................................................................... 43

Joy Techs., Inc. v. Flakt, Inc.,6 F.3d 770 (Fed. Cir. 1993) ................................................................................ 39

Kemin Foods, L.C. v. Pigmentos Vegetales del Centro S.A. de C.V.,

464 F.3d 1339 (Fed. Cir. 2006) .......................................................................... 62

Liebel-Flarsheim Co. v. Medrad, Inc.,358 F.3d 898 (Fed. Cir. 2004) ............................................................................ 43

Linear Tech. Corp. v. International Trade Comm'n,566 F.3d 1049 (Fed. Cir. 2009) .......................................................................... 43

Marine Polymer Techs., Inc. v. Hemcon, Inc.,672 F.3d 1350 (Fed. Cir. 2012) .......................................................................... 41

Markman v. Westview Instruments, Inc.,

52 F.3d 967 (Fed. Cir. 1985) .............................................................................. 47

NEC Corp. v. United States,

151 F.3d 1361 (Fed. Cir. 1998) .......................................................................... 38

Nippon Steel Corp. v. United States,458 F.3d 1345 (Fed. Cir. 2006) .......................................................................... 38

Norgen Inc. v. International Trade Comm'n,

699 F.3d 1317 (Fed. Cir. 2012) .......................................................................... 38

Omega Eng'g, Inc. v. Raytek Corp.,

334 F.3d 1314 (Fed. Cir. 2003) .................................................................... 44, 46

Phillips v. AWH Corp.,415 F.3d 1303 (Fed. Cir. 2005) .............................................................. 41, 48, 49

Samsung Elecs. Co. Ltd., et al. v. Apple Inc.,Case No. 1:11-CV-00573-LPS (D. Del. filed June 29, 2011) ........................... xiv



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Stiftung v. Renishaw PLC,

945 F.2d 1173 (Fed. Cir. 1991) .......................................................................... 43

Talbert Fuel Sys. Patents Co. v. Unocal Corp.,275 F.3d 1371 (Fed. Cir. 2002) .......................................................................... 51

Teleflex, Inc. v. Ficosa N. Am. Corp.,299 F.3d 1313 (Fed. Cir. 2002) .......................................................................... 43

Universal Camera Corp. v. NLRB,

340 U.S. 474 (1951) ............................................................................................ 38

Vivid Techs., Inc. v. American Science & Eng'g., Inc.,200 F.3d 795 (Fed. Cir. 1999) ............................................................................ 42

Winbond Elecs. Corp. v. International Trade Comm'n,262 F.3d 1363 (Fed. Cir. 2001) .......................................................................... 38

Yuba Goldfields, Inc. v. United States,723 F.2d 884 (Fed. Cir. 1983) ............................................................................ 62

Statutes

28 U.S.C. 1295(a)(6) ............................................................................................... 5

28 U.S.C. 1659 ..................................................................................................... xiv

19 U.S.C. 1337 ........................................................................................................ 5

19 U.S.C. 1337(c) ................................................................................................... 5

5 U.S.C. 556(d) .................................................................................................... 65



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TABLE OF ABBREVIATIONS

A_____ The cited page(s) of the Joint Appendix

AG Absolute Grant

ALJ Administrative Law Judge

Commission United States International Trade Commission

CRC Cyclic Redundancy Check

DI Domestic Industry

HSUPA High-Speed Uplink Packet Access

ID Initial Determination (A187-830)

Node B Base Station

Section 337/ 337 19 U.S.C. 1337

UE User Equipment

UMTS Universal Mobile Telecommunication System

644 Asserted Claims Claims 9 and 13 of U.S. Patent No. 7,486,644

644 Patent U.S. Patent No. 7,486,644 (A5894-5914)



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STATEMENT OF RELATED CASES

No other appeal in or from the same proceeding was previously before this

Court or any other appellate court.

The patent that is subject to this appeal, U.S. Patent No. 7,486,644 (the

644 Patent), is currently being asserted in a district court action between

Samsung and Apple in the United States District Court for the District of

Delaware. See Samsung Elecs. Co. Ltd., et al. v. Apple Inc., Case No. 1:11-CV-

00573-LPS (D. Del. filed June 29, 2011). That action is stayed pending resolution

of Commission proceedings pursuant to 28 U.S.C. 1659.



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INTRODUCTION

The legal and factual issues posed in this appeal were neither difficult nor

close. Straightforward application of settled patent law to the facts of the case

makes plain that Apples products infringe Samsungs 644 patent. The

Commission concluded the opposite based on unsupported findings.

The 644 patent concerns the transmission and reception of the Absolute

Grant (AG) control information. The base station (or Node B) sends the AG

to a User Equipment (or UE)so that UE knows what data rate to use on the

network. The 644 patent claims cover the coding of the AG at theNode B and

decoding of the AG at the UE. The claims cover additional bits, coding, and a

specific puncturing scheme that serve to add redundancy and accuracy to ensure

the AG is accurately decoded. During transmission, the Node B combines the 6-bit

AG with a 16-bit User Equipment Identifier Cyclic Redundancy Check (UE-ID

specific CRC)and 8 padding bits to form 30 bits. It encodes those bits at a rate of

1/3 resulting in 90 bits. Those 90 bits are punctured according to an optimal rate-

matching pattern to 60 transmittable bits.

The receipt of the transmission at the UE, which is at issue in this appeal,

teaches the mirror of the coding chain. First, the UE extracts the 60-bit rate-

matched block from the signal Next, the rate-matched block is depunctured using

the same rate matching pattern used by the Node B, for a total of 90 bits. Next, the



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bits are decoded to 30 bits, at which point the UE-ID specific CRC and 6-bit

absolute grant are generated.

The Commission broke from the fundamental rule that claims written with

the open ended language comprising do not forbid additional elements or steps.

The 644 claims recite extracting a 60-bit rate-matched block. That is exactly

what Apples products do. If they did not, they could not communicate with any

cellular system. When Apples products

In

order to exonerate Apple, the Commission wrongly found that the 644 claims

forbidinclusion of any despite the use of comprising. By

doing so, the Commission committed reversible error.

It is abundantly clear that Applesproducts do precisely what the 644 patent

claims. To avoid that result, the Commission selectively excerpted 34 lines of

testimony from the cross-examination of Samsungs expert, Dr. Min, in a way that

distorts his actual testimony. As demonstrated infra, the Commission used ellipses

to exclude important testimony. On that basis the Commission erroneously

concluded that Samsung failed to prove that Apple extracted a 60-bit rate-matched

block, as claimed in the 644 patent. A94-95.

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Even accepting the Commissions flawed construction,Samsung should

prevail. In its Opinion, the Commission misrepresented key evidence and ignored

other evidence. Although the Commission concluded that Dr. Min abandoned his

opinion that Apples products extract bits, it is the Commission that actually

abandoned itby omitting Dr. Mins testimony in the key quote. Dr. Mins

testimony in the actual transcript is consistent with his opinion that Apples

products

Additionally, the Commission resorted to an astonishing rationale

that Apples products

to exonerate Apple.

Apple was permitted to offer its argument despite its late

disclosure, and Samsung was prevented from offering rebuttal. Apple made no

mention of its arguments until after fact discovery closed and expert reports were

due. Acknowledging that Apples argument was late and prejudiced Samsung, the

ALJ struck, at Samsungs request, the expert testimony that Apple proposed to

offer in support of its late disclosed arguments. Despite acknowledging prejudice,

however, the ALJ entertained and credited Apples new argument without

permitting Samsung an opportunity to rebut the argument at the hearing. First, the

ALJ prohibited Dr. Min from supplementing his report to address Apples newly-

disclosed argument. Second, the ALJ led Samsung to believe that Dr. Min would

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be able to respond substantively to the argument. Third, the ALJ allowed Apple to

cross-examine Dr. Min about even though he made no mention of the

subject during his direct examination. Finally, the ALJ did not allow Dr. Min to

respond during redirect contrary to his prior assurances, and to fundamental

fairness. The ALJ went so far as to foreclose Dr. Min from offering opinions

relevant to the doctrine of equivalents, even though those opinions would have

been directly responsive to Apples late disclosed arguments. To permit and credit

a new argument by one party without permitting the other party to respond is not a

permissible exercise of discretion.

The Court should rectify the Commissions errors by reversingthe

Commissions finding of noninfringement of the 644 patent. In the alternative,

the Court should remand to afford Samsung a full and fair opportunity to rebut

Apples argument.

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JURISDICTIONAL STATEMENT

This is an appeal from a final determination of the International Trade

Commission under 19 U.S.C. 1337. The Commission issued its final

determination on June 4, 2013. A1-16. Samsung timely filed its petition for

review on July 18, 2013. See 19 U.S.C. 1337(c). This Court has jurisdiction

under 28 U.S.C. 1295(a)(6).



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STATEMENT OF THE ISSUES

1. Whether the Commission erred by construing extracting a 60-bit

rate-matchedblock to exclude Applesproducts that

2. Whether the Commission erred by ignoring evidence that Apples

products ultimately such that they fall

within the Commissions construction, even accepting that construction.

3. Whether the Commission erred by affirming the ALJs simultaneous

(i) refusal to exclude Apples late-disclosed noninfringement arguments, (ii)

exclusion of Samsungs expert evidence that was necessary to respond to Apples

late-disclosed noninfringement arguments; and (iii) refusal to permit Samsung to

offer evidence of the doctrine of equivalents, which Samsung offered in direct

response to Apples late-disclosed noninfringement arguments.

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STATEMENT OF THE CASE

On June 29, 2011, Samsung requested that the ITC institute an investigation

into Apples violation of 337 based on six Samsung patents. The evidentiary

hearing was held June 4, 2012-June 15, 2012. On September 14, 2012, the ALJ

issued an Initial Determination on Violation of Section 337 and Recommended

Determination on Remedy and Bond finding no violation of 337. A187-830.

On June 4, 2013, the Commission issued a Final Determination that certain

iPhones and iPads infringe U.S. Patent No. 7,706,348 (348 patent). A1-16;

A17-178. In the same Final Determination, the Commission found the 644 patent

not infringed because, according to the Commission, there was no evidence in the

record to show that Apples productsextracted a 60-bit rate-matched block. Id.

The 348 patent was asserted only against older Apple iPhones and iPads,

such as the iPhone 4 and iPad 2. The 644 patent was asserted against Apple

iPhones and iPads with HSUPA capabilities, including the iPhone 4S, iPhone 4,

and iPad 2.

Also on June 4, 2013, because the Commission found that Apple infringed

the 348 patent, the Commission issued an exclusion order and cease and desist

orderbased on Apples violation of 337 excluding importation of older Apple

iPhones and iPads. A1-16. On August 3, 2013, the United States Trade



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Representative disapproved the Commissions orders the first disapproval in 26

years. A5998-6001.



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STATEMENT OF FACTS

I. TECHNOLOGY BACKGROUNDThe 644 patent relates to digital wireless communications between a base

station and a mobile phone. A6009(1:30-35, 1:46-55), A10278:13-79:14. More

specifically, the 644 patent relates to the HSUPA portion of the UMTS standard.

A10278:9-12. This standard is used by AT&T, T-Mobile, and other carriers in the

United States.

In the 644 patent, as in UMTS, the base station is called the Node B.

A6009(1:46-55). The mobile phone is called User Equipment, which is

abbreviated UE.Id. The transmission from the Node B to the UE is called the

downlink. A10652:2-5. The transmission in the other direction is called the

uplink. A10652:9-12.

The transmissions between the Node B and the UE are called channels.

Some channels are used for control information (i.e.information that is used to

control the Node B or the UE). For example, there is a control channel in the

downlink direction called the Enhanced Absolute Grant Channel (E-AGCH).

A10649:5-18. Other channels are used for data. For example, there is a data

channel in the uplink direction called the Enhanced Uplink Data Channel (E-

DCH).Id.



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A. Transmission and Recovery of the Absolute Grant (AG)In the 644 patent, as in the UMTS standard, the Node B transmits important

control information to the UE. The control information is called the Absolute

Grant (AG). A6010(3:6-11). The AG is transmitted from the Node B to the UE

on the E-AGCH. A6010(4:59-60). The AG tells the UE the maximum data rate

that it can use to transmit data on the E-UDCH. A6010(4:64-67).

The AG is necessary to the successful operation of UMTS. A10655:4-8. In

the 644 patent, as in UMTS, the Node B goes to great lengths to protect the AG.

A6011(6:9-17), A10655:20-57:6. If the AG is lost or corrupted, the UE cannot

operate properly. The figure below illustrates how the AG is transmitted and

recovered.

The dashed box on the left shows the steps the Node B takes to protect the AG.

A6007. The Node B and UE have antennae. The Node B uses its antenna to

transmit a radio wave to the UEs antenna. When the radio wave arrives at the UE,

the signal has deteriorated and the power level has decreased. Moreover, the radio



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wave has also picked up interference from other radio waves and obstructions

while in transit. A10655:9-19. The dashed box on the right shows how the UE

overcomes this interference to recover the AG. A6008, A10655:20-57:6.

1. Formation of the ID specific CRC Attachment (30 bits)The AG consists of six bits. A6011(6:30). The AG is sent with a 16-bit UE-

ID specific CRC, which is also used by the UE to ensure the data is correctly

recovered. A6011(6:46-54). Together, the AG and UE-ID specific CRC is 22 bits.

Id. The Node B adds eight tail bits,resulting in a total of 30 bits. A6011(6:55-

58).

2. Coding of the AG (30 to 90 bits)These 30 bits are coded to get 90 bits. A6011(6:55-59). Because the control

information is important, the 30 bits are expanded through encoding to 90 bits (i.e.

30 x 3 = 90). A10660:18-24. This ensures that, through redundancy, even if some

of the bits are corrupted, the UE can still use the other bits to recover the AG.

A10661:11-15.

3. Puncturing of the Coded Bits (90 to 60 bits)Because of restrictions on the E-AGCH, the Node B can transmit only 60

bits. A6011(6:55-62.), A6012(7:36-55). Therefore, the Node B reduces the

number of bits from 90 to 60. Id. In the 644 patent and in the UMTS standard,

this is called rate matching.Id. Rate matching refers to the process where the

Node B matches the rate of bits that are transmitted to the maximum rate of bits on



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the E-AGCH. A10659:15-60:25. The rate matching is performed by puncturing

30 of the 90 bits. A6011(6:59-62), A6012(7:36-55). Puncturing is a term that is

commonly used in the art to mean deleting, removing, excluding, suppressing,

ignoring, or simply skipping and not transmitting some of the bits. A25-30. The

Node B uses a set pattern that is known to the UE to puncture the 90 bits.

A10662:16-22, A6011(6:55-67).

4. Transmission of the 60 bitsThe 60 bits are transmitted from the Node B using an antenna and a radio

wave that incorporates the 60 bits in an analog waveform. While the 1s and 0s

are digital, the radio wave is an analog signal. A10670:4-19, A10706:3-19,

A11018:2-19:9. The 1s and 0s in the digital transmission are used to modulate

the radio wave. Id. Although the modulation is rather complicated and beyond the

scope of this appeal, the radio wave has two components: an in-phase (or I)

component and a quadrature (or Q) component. A11041:15-22. The 1s and

0s are assembled into groups of two to create one of four possible combinations

(11, 10, 01, 00). These four combinations are used to change the I and Q

components of the radio wave.

5. Extraction of the 60 bitsWhen the radio wave arrives at the UEs antenna,it contains interference.

Because the radio wave is an analog signal, the UE has to process it to obtain the



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1s and 0s. The UE examines the I and Q components of the radio wave to extract

exactly 60 bits. A6008, A10670:17-71:15, A10706:3-19. While the radio wave

contains interference, the radio wave contains only 60 bits because no new bits

were generated or added during the transmission. A10706:3-07:9, A10752:11-

53:10. To be clear, it is not possible for the UE to extract morethan 60 bits,

because they do notexist. Id.

Similarly, the UE cannot extract lessthan 60 bits. A10683:16-84:13,

A10705:23-07:9, A10711:2-22, A10753:2-10, A10804:16-05:23, A10808:8-21.

Even though some of the bits contain interference, the UE cannotignore any of the

bits. Instead the UE makes a best guess as to what the bit is. See id. If the UE

extracts less than 60 bits, the whole process breaks down and the control

information is lost forever. Id.

While the UE is extracting the 60 bits, it can also

A11277:9-78:9. These

are discussed in Section B below. These

were well known at the time of the 644 patent. In fact,

the inventors of the 644 patent

A8768-74.

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6. Depuncturing of the Coded Bits (60 to 90 bits)Once the UE extracts the 60 bits, it has to replace the punctured bits.

A10670:20-71:18, A10714:21-16:22. For the decoding to work, there must be 90

bits. Id. The UE knows the pattern that the Node B used for puncturing. Id. The

UE does not, however, know what the original, punctured, bit was. Id. Therefore,

the UE inserts thirty 0s where the 30 bits were punctured at the Node B.Id. Once

the thirty 0s are added, there is a total of 90 bits.Id.

7. Decoding of the Coded Bits (90 to 30 bits)At the Node B, coding increased the number of bits from 30 to 90.

A10672:17-73:6, A10717:11-21:22. At the UE, the decoder decreases the number

of bits back from 90 to 30. Id. These 30 bits are the 6-bit AG, the 16-bit UE-ID

specific CRC, and the 8 tail bits. Id.

If some of the bits are corrupted, the decoder can look at the other bits to

detect and correct these errors. A10656:8-657:6. Because the original bits were

sent multiple times, it is possible to overcome these errors and recover what was

originally sent. Id. For example, if the UE initially guessed that a bit was a 0,

but the bit was really a 1, the UE can change the 0 back to a 1 during the

decoding process. Id.



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8. Recovery of the UE ID specific CRC Attachment (30 bits)Once the decoder has corrected any errors and recovered the control

information, the UE uses the AG to determine what data rate to use on the uplink.

A10649:5-50:6, A10674:25-75:5, A10702:9-18, A10721:23-25:2.

B.The only difference between the figure above and Apples productsis

A11276:25-81:20. The extracted bit and

A11281:21-84:1, A11286:13-88:6.

These are the

A8768-74. As illustrated below and explained by Dr.

Min during the Hearing, these

A11271:13-88:6.

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A10670:4-19, A10706:3-19, A11018:2-19:9.

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A11271:21-72:4, A11274:17-20.

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A11272:24-73:10, A11277:9-78:9.

A11271:13-88:6.

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Id.

Id.

C. Dr. Mins Testimony AboutAs discussed below in Section IV, Apple never asserted that its products do

not infringe because they until after fact discovery closed and

opening expert reports were due. Because the

and Apple had never contended that did not

infringe, Dr. Min mentioned only in passing in his expert report. Only

later did Apple first seize upon as a noninfringement argument.

Because Apples argument came late, its expert was prohibited from testifying

about during the Hearing. A3554-55. Therefore, the only testimony

on during the Hearing was from Dr. Min. Because it was not material

to his infringement opinions, Dr. Min did not testify about during his

direct examination. On cross examination, however, Apple asked Dr. Min about

Samsung objected, and the ALJ overruled the objection. A10832:5-

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844:24 In response, Dr. Min consistently and precisely testified that Apples

products

See A11302:20-24

). When Samsung sought to ask responsive questions to Dr. Min on

redirect regarding doctrine of equivalents, the ALJ prohibited it. A11288:7-300:4.

Apples position during the Hearing and in its post hearing Briefs was

simply that Apple based on a separate

flawed construction of extract not embraced by the Commission. A4461. Apple

never took the position that Dr. Min gave up on and never

disputed whether information Instead,

Apple took the unsupported position that to extract, Applesproducts had to

Id. Essentially, Apples argument

was that, because its products used

The Commission, however, formulated a new theory that neither the parties,

nor the ALJ had ever offered. Departing from the record as well as the arguments

before it, the Commission indicated in its Final Determination that Apples

products A94-95. Instead, they solely

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Putting aside that this conclusion means the

devices would not communicate, it has no support in the record and is at odds with

the only expert testimony during the Hearing. See, e.g. A11302:6-03:15. In

reaching its conclusion, the Commission selectively quoted Dr. Mins testimony

with ellipsis. The bolding and underlining below reflects the testimony that the

Commission omitted:

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A11302:6-03:15 (emphasis added). As reflected in Apples cross examination,

Apple was not suggesting that its products Instead

Apples attorney was trying to get Dr. Min to admit that Apple

A11303:12-13 (emphasis added). Dr. Min never changed his position, and he

certainly did not give up on as the Commission wrongly

determined. Dr. Min consistently testified that:

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Apple never cited this testimony in its post-Hearing briefs for the proposition that

Apple The Commission went down its own path, and

offered its own selective recounting of Dr. Mins testimony to do so.

II. ACCUSED PRODUCTSSamsung accuses the iPhone 4, iPhone 4S, and iPad 2 of infringing claims 9

and 13 of the 644 patent. All of these products are

All of these products contain source code that

In the iPhone 4 and iPad 2,

this source code is found in the Intel PMB9801 baseband processor. In the iPhone

4S, the source code is found in the Qualcomm MDM6610 baseband processor.

The relevant parts of the source code in the Intel and Qualcomm chips

A. Source Code in the iPhone 4 and iPad 2The iPhone 4 and iPad 2 each contain Intel Baseband Processors.

A10747:14-21, A10968:6-10, A8822-23, A6673(33:10-16), A6674(34:20-35:1).

As the

A10772:5-15, A15016.

The process whereby Applesproducts retrieve the bits from the received

signal is shown in

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A10752:11-53:10, A7783.

The entire process of

A10769:25-70:4.

A10769:13-70:20,

A15014-19. The

A10771:13-18, A10772:11-22.

The

A10771:19-72:5, A15015. The different

A10772:5-10,

A7783. The code shows

A10772:11-22, A15016. Where the

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A10772:5-15, A15016. The

A10772:13-73:3. The

Id., A15016.

Because Apples products

A11274:6-75:7, A11279:22-81:20.

A11271:24-72:4,

A11274:6-75:7, A11279:22-81:20. The

A11271:24-72:4, A11279:22-81:20.

This can be

seen in

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A7783.

A10775:4-12.

A10775:4-12, A15016.

A10776:14-22, A15016.

A10775:13-24, A15016.

A10775:13-24, A11286:19-88:6, A15016.

The next step

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A10778:2-80:3, A7783. The

A10778:10-80:3, A7783,

A6832(39:15-40:2) (testifying that

).

A10780:25-81:1. The

A10781:4-16, A15017, A15020. The

A10781:4-16, A15020.

The

A10784:6-10, A15025.

The A10784:11-

14, A15025.

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B. Source Code in Qualcomm Chip in iPhone 4SThe iPhone 4S contains a Qualcomm baseband processor. A10828:6-12,

A10829:24, A8577.2 In the iPhone 4S,

A15093(4S), A15149 (DI),

A10807:1-20, A10810:10-12.

Id.

The code reflects the

The

A10807:1-20, A15092(line 152) (4S), A15148 (DI).

2 The Samsung DI products also contain Qualcomm baseband processors.

A10694:16-95:9, A10798:11-99:18, A10802:1-803:1, A8570. The source code in

the A10802:1-03:14. Source code

citations

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A10805:1-11.

A10805:18-23, A10806:21-07:20.

A101271:24-72:4, A101279:22-81:20.

The iPhone 4S next

A10809:20-812:25, A15096 (4S), A15152 (DI). Apples

products

A10809:17-12:25, A15096(lines 352-85) (4S), A15152(lines 347-80)

(DI). In that code,

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A10809:22-

10:9.

Next,

A10820:9-21:12.

A10813:12-14:3,

A15094(line 292) (4S), A15150(line 287) (DI).

A10819:3-14.

A10820:20-21:12.

III. ASSERTED CLAIMSClaims 9 and 13 are reproduced below. Claim 9 is a method claim. Claim

13 is an apparatus claim. This appeal concerns the bolded portions. The issues are

the same for both claims.

9. A method of receiving control information associated with uplinkpacket data transmission in a mobile communication system,

comprising the steps of:

extracting a 60-bit rate-matched blockfrom a signal received from

a Node B;

generating 90 coded bitsby rate-dematching the rate-matched block

according to a rate matching pattern representing positions of bits tobe depunctured;

generating6-bit control information and a 16-bit user equipment

identifier (UE-ID) specific cyclic redundancy check (CRC) bydecoding the coded bits at a coding rate of 1/3; and

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outputting the control information by checking the UE-ID specific

CRC,

wherein the rate matching pattern comprises {1, 2, 5, 6, 7, 11, 12, 14,15, 17, 23, 24, 31, 37, 44, 47, 61, 63, 64, 71, 72, 75, 77, 80, 83, 84, 85,

87, 88, 90}.

13. An apparatus for receiving control information associated with

uplink packet data transmission in a mobile communication system,the apparatus comprising:

a physical channel demapper for extracting a 60-bit rate-matched

blockfrom a signal received from a Node B;

a rate dematcher for generating 90 coded bitsby rate-dematching therate-matched block according to a rate matching pattern representing

positions of bits to be depunctured;

a channel decoder for generating6-bit control information and a 16-bit user equipment identifier (UE-ID) specific cyclic redundancy

check (CRC) by decoding the coded bits at a coding rate of 1/3; and

a CRC checker for outputting the control information by checking the

UE-ID specific CRC,

wherein the rate matching pattern comprises {1, 2, 5, 6, 7, 11, 12, 14,

15, 17, 23, 24, 31, 37, 44, 47, 61, 63, 64, 71, 72, 75, 77, 80, 83, 84, 85,87, 88, 90}.

The central issue is whether the correct construction of extracting a 60-bit

rate-matched block should not exclude

The other highlighted portions stand or fall with this issue. If claims 9 and

13 are properly construed to allow for

then they also allow in the other

elements of the claim. There is no legitimate dispute about how Apples products

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operate. There is, however, a dispute whether the claims forbid the presence of the

IV. APPLES LATE DISCLOSURE OF ITS ARGUMENTApple did not disclose its argument until after the close of

discovery and expert reports were due. Noninfringement contentions were due on

January 20, 2012. Fact discovery closed on February 20, 2012. Dr. Mins

infringement expert report was due on February 29, 2012. Dr. Mins expert report

only mentions in passing. Because were not relevant to his

infringement opinions and Apple had never indicated that did not

infringe, there was no reason for him to go into in more detail.

Apple did not disclose its argument until March 5, 2012 when it

moved for summary determination, which the ALJ denied. A934. Apples expert

Dr. Stark submitted his noninfringement expert report on March 21, 2013. In light

of Apples untimely disclosure of new arguments, Samsung moved for leave to

supplement its opening expert report to address these new noninfringement

arguments on April 17, 2012. A1099-208. On May 10, 2012, the ALJ denied

Samsungs motion for leave, but stated that if Apple failed to timely disclose the

contentions underlying Dr. Starks rebuttal opinions, then the appropriate response

here would be a motion to strike the offensive portions of the report in issue rather

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than engage in a Ping-Pong exchange of amended expert opinions on the eve of the

evidentiary hearing. A1383-84.

The ALJ also indicated that [t]he Administrative Law Judge is willing to

entertain such a motion, if promptly filed and complainants have adequate support,

to address whether Complainants were denied the opportunity to explore

Respondents allegedly new contentions in discovery. A1384. Samsung

therefore moved to strike all mention of from Dr. Starks expert report.

A1390-406. The ALJ agreed with Samsung that Apple had made a tactical

decisionand that this tactical decisionhad prejudiced Samsung, striking all

mention of from Dr. Starks report. A3554-55.

The same order also stated the following: it is noted that the underlying

evidence is not stricken, and Respondent is free to explore this evidence with Dr.

Min on cross-examination. Should Respondent choose to do so, however, Dr. Min

will be permitted to offer responsive opinions. A3573. Samsung understood this

to mean that Apple would be permitted to raise its stricken arguments on cross

examination should Samsung open the door in the course of direct examination.

Samsung clarified this at the hearing:

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A10834:16-36:13 (emphasis added.) After that clarification, there was seemingly

no doubt that Apple would be permitted to cross-examine Dr. Min only as to the

subject matter covered on his direct examination. A10834:22-35:9. Samsung did

not open the door to any of the stricken subject matter on direct examination.

A10836:14-22. Even so, the ALJ allowed Apple to cross-examine Dr. Min

regarding the undisclosed defenses, and overruled Samsungs objections to the

effect that it had not opened the door. A10843:11-16.

The prejudice continued. After Apple was permitted to cross-examine Dr.

Min on its arguments, Samsung sought to inquire as to Dr. Mins

responsive opinions, just as the ALJ had previously indicated Samsung would be

permitted to do. A3573. When Samsung questioned Dr. Min regarding his

opinions on the Doctrine of equivalents that were directly responsiveto Apples

late-disclosed noninfringement arguments, Apple objected. Despite his clear

ruling, the ALJ sustained the objectionthereby prohibiting Samsung from

ensuring Dr. Min could offer his opinions as to subject matter Apple first brought

out on cross-examination. A11288:7-299:23.

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SUMMARY OF THE ARGUMENT

I. The Commission erred by finding that the element extracting a 60-bit

rate-matched block was not infringed. The Commission based its finding on a

flawed construction of extracting a 60-bit rate-matched block that disregards the

open-ended nature of the term comprising. The Commission found that Apples

precludes this limitation from being infringed. Once the

term is properly construed, the have no place in

the infringement analysis.

II. The Commission erred under its own construction of extracting a 60-

bit rate-matched block because it misconstrued Dr. Mins testimony by

disregarding key portions that refute the Commissions interpretation of his

testimony. The Commission found that Dr. Min gave up on testifying that

Apples products and affirmatively changed his testimony to say

they Dr. Mins full testimony as recorded in the

transcript, however, cannot bear that finding. Dr. Min never changed his

testimony. Instead, in responding to Apples questioning on cross-examination as

to whether Apples products Dr. Min made clear

that, when the products

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III. The Commission erred when it embraced the ALJs pattern of

evidentiary rulings that favored Apple and prejudiced Samsung. Samsung was

prejudiced because Apple withheld its noninfringement arguments until after

Samsung served its opening expert report, such that Samsung was denied an

opportunity to respond. The ALJ first denied Samsung an opportunity to

supplement its experts report to address these late-disclosed arguments. The ALJ

then allowed Apple to affirmatively pursue its arguments with Samsungswitness

on cross-examination, even though Samsung had notopened the door on direct.

Such unfair and inconsistent evidentiary rulings amount to an abuse of discretion.

IV. Finally, the Commission erred when it failed to consider Samsungs

invocation of the doctrine of equivalents, or even to remand so that evidence

regarding the doctrine of equivalents might be introduced. When the ALJ

permitted Apple to question Samsungs expert, Dr. Min, on Apples late-disclosed

noninfringement arguments, it was with the understanding that Dr. Min would be

permitted to offer responsive opinions for Samsung. Yet, when Samsung

questioned Dr. Min regarding his responsive opinions regarding the doctrine of

equivalents, the ALJ blocked him from answering. This, too, was an abuse of

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STANDARD OF REVIEW

This Court reviews the Commissions legal determinations de novoand

factual determinations for substantial evidence.Amkor Techs., Inc. v.

International Trade Commn, 692 F.3d 1250, 1254 (Fed. Cir. 2012). Because it is

a purely legal question, this Court reviews claim construction de novoon appeal

including any allegedly fact-based questions relating to claim

construction. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir.

1998) (en banc). In applying the substantial evidence standard, [a] reviewing

court must consider the record as a whole, including that which fairly detracts from

its weight, to determine whether there exists such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.Nippon Steel Corp. v.

United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006) (citations and internal

quotation marks omitted). Substantial evidence must be sufficient to justify, if

the trial were to a jury, a refusal to direct a verdict when the conclusions sought to

be drawn from it is one of fact for the jury.Norgen Inc. v. International Trade

Commn, 699 F.3d 1317, 1321 (Fed. Cir. 2012) (quoting Universal Camera Corp.

v. NLRB, 340 U.S. 474, 477 (1951)).

This Court generally reviews evidentiary determinations of the

Commission for an abuse of discretion. Winbond Elecs. Corp. v. International

Trade Commn, 262 F.3d 1363, 1370 (Fed. Cir. 2001) (citingNEC Corp. v. United



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States, 151 F.3d 1361, 1375 (Fed. Cir. 1998)). An abuse of discretion may be

established by showing that the court made a clear error of judgment in weighing

the relevant factors or exercised its discretion based upon an error of law or clearly

erroneous factual findings. Bio-Tech. Gen. Corp. v. Genentech, Inc., 80 F.3d

1553, 1558 (Fed. Cir. 1996) (citingJoy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 772

(Fed. Cir. 1993));see alsoAxiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374,

1378 (Fed. Cir. 2009) (A trial courts determination ofan evidentiary matter

constitutes an abuse of discretion if, for example, it is clearly unreasonable,

arbitrary or fanciful or is based on an erroneous construction of law.) (citation

omitted).

ARGUMENT

I. THE COMMISSION ERRED BY CONSTRUING EXTRACTING A60-BIT RATE-MATCHED BLOCK TO EXCLUDE PRODUCTS

THAT

The Commissions construction of extracting a 60-bit rate-matched block

erroneously excludes That

construction defies the open-ended language comprisingthat appears in claims 9

and 13 of the 644 patent. Properly read, the term extracting a 60-bit rate-

matched block does not exclude unclaimed limitations or steps. But the

Commission found noninfringement merely because Applesproducts

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A. Contrary to the Commissions Construction, Extracting a 60-BitRate-matched Block Does Not Exclude

The Commission erred when it construed the term extracting a 60-bit rate-

matched block to preclude additional operations on the extracted bit such as

The claims at issue use the open-ended language

comprising, and nothing in the intrinsic record disavows additional, unclaimed

steps. Moreover, the extrinsic record confirms that the correct construction of

extracting a 60-bit rate-matched block cannot plausibly preclude the

The Commission appears to have adopted the ALJs erroneous construction

of extract, to select (excerpts) or copy out or cite. A314. That construction is a

dictionary definition devoid of any requisite consideration of intrinsic evidence or

the field of art of one of ordinary skill in the art to whom the 644 patent is

directed. Id. Without any explanation, the Commission apparently concluded that

the UE could not infringe this limitation unless it makes an identical copy of the

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incoming analog signal, and performs no additional steps. A93-96. No cellular

system in the world works, has worked, or can ever work this way.3

1. Nothing in the Specification or File History Precludes the

Claim construction process begins with the language of the claims. Aventis

Pharma S.A. v. Hospira, Inc., 675 F.3d 1324, 1330 (Fed. Cir. 2012) (citingPhillips

v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005));Marine Polymer Techs.,

Inc. v. Hemcon, Inc., 672 F.3d 1350, 1358 (Fed. Cir. 2012) (citingPhillips, 415

F.3d at 1312-13);Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381

F.3d 1111, 1115-16 (Fed. Cir. 2004) (a claim construction analysis must begin

and remain centered on the claim language itself) (citingInteractive Gift Express,

Inc. v. Compuserve, Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001)). The claims at

issue use the open-ended language comprising:

9. A method of receiving control information associated with uplinkpacket data transmission in a mobile communication system,

comprising the steps of:

extracting a 60-bit rate-matched block from a signal received from a

Node B;

A6022(27:31-35) (emphasis added).

3 Under Samsungs proposed construction, the term extract means

processing to obtain or derive, for some processing must occur to obtain orderive, in digital format, the bits that are received on an analog signal. A5502-08.

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13. An apparatus for receiving control information associated with

uplink packet data transmission in a mobile communication system,the apparatus comprising:

a physical channel demapper for extracting a 60-bit rate-matched

block from a signal received from a Node B;

A6022(28:15-19) (emphasis added).

Whenever a claim uses the word comprising, the presumption is that the

recited elements are only a part of the device, and that the claim does not exclude

additional recited elements. Arcelormittal France v. AK Steel Corp., 700 F.3d

1314, 1319-21 (Fed. Cir. 2012) (citingCrystal Semiconductor Corp. v. TriTech

Microelectronics Intern., Inc., 246 F.3d 1336, 1348 (Fed. Cir. 2001) (the

transition comprising creates a presumption that the recited elements are only a

part of the device, that the claim does not exclude additional, unrecited elements.)

(citations omitted));Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1319

(Fed. Cir. 2009) (the term comprising is well understood in patent law to mean

including but not limited to.) (citations omitted); see also Boehringer Ingelheim

Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1350 (Fed. Cir. 2003)

(construing comprisingclaim to allow additional steps);Vivid Techs., Inc. v.

American Science & Engg., Inc., 200 F.3d 795, 811 (Fed. Cir. 1999) (reversing

summary judgmentbecause comprising implements the general rule that absent

some special circumstance or estoppel which excludes the additional factor,

infringement is not avoided by the presence of elements or steps in addition to



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those specifically recited in the claim.); Stiftung v. Renishaw PLC, 945 F.2d 1173,

1178 (Fed. Cir. 1991) (vacating noninfringement finding based on construction

that foreclosed inclusion of additional elements, and holding that a claim that uses

the term comprising is an open claim which will read on devices which add

additional elements).

The Commission acknowledges this rule in theory in its Opinion:

We note that the asserted claims use the transitional phrase

comprising, and therefore an accused device does not avoid

infringement merely by performing additional functions beyond thoserecited in the claim. See Invitrogen Corp. v. Biocrest Mfg., L.P., 327F.3d 1364, 1368 (Fed. Cir. 2003) (The transition comprising in a

method claim indicates that the claim is open-ended and allows for

additional steps.).

A94. Still, the Commission proceeded to construe extracting a 60-bit rate-

matched block in claims 9 and 13 as though it excludes

This Court has emphasized time and again that a claim should not be

restricted absent a clear disclaimer of scope. See Linear Tech. Corp. v.

International Trade Commn, 566 F.3d 1049, 1057-58 (Fed. Cir. 2009) (adopting a

broad construction because there was no clear intention to limit the claim scope

using words or expressions of manifest exclusion or restriction) (quotingLiebel-

Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (cautioning

against inserting limitation absent clear disclaimer)); Teleflex, Inc. v. Ficosa N.

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Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002) (cautioning against a restrictive

construction unless the patentee demonstrated an intent to deviate from the

ordinary and accustomed meaning of a claim term . . . [using] words or expressions

of manifest exclusion or restriction, representing a clear disavowal of claim

scope.) (emphasis added). This is particularly important where, as here, a

proposed construction would superimpose negative limitations that disqualify

additional steps. See Omega Engg, Inc. v. Raytek Corp., 334 F.3d 1314, 1322-23

(Fed. Cir. 2003) (rejecting negative limitation where there was no express

disclaimer or express intent to justify adding the negative limitation). Neither the

Commission, nor the ALJ provided any analysis as to why their construction was

proper in light of the intrinsic evidence. A91-96, A314-15.

In describing the extracting process, the644 patentspecification refers

only to the UE receiving the bits transmitted to it from the Node B. Nothing in the

specification rules out the possibility of the UE

The

extraction is illustrated as part of the physical channel demapper of Figure 4:

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A6008. The specification states: Referring to FIG. 4, the UE receives a signal on

an E-AGCH 402. A physical channel demapper 404 extracts a rate-matched block

from a 2-ms TTI in the received signal. See, e.g., A6012 at 7:59-61. The

specification goes on to indicate that the physical channel demapper 404 and the

rate dematcher 406 perform the same operation five times and combine the

resulting coded sub-blocks to one coded block.See, e.g., A6012 at 7:67-8:2.

Absent from this description of the extracting process is any restriction on

how the extraction occurs. The 644 patent specification refers to extracting a 60-

bit rate-matched block simply as the process of receiving the 60 bits that were

transmitted by the Node B. Nowhere does the 644patent specification restrict the

UE from processing those 60 bits in any particular wayso long as the UE

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Likewise, the 644 patent prosecution history adds no restrictions on

extracting a 60-bit rate-matched block. A6023-628. Because it contains no

rejections, amendments, or other arguments, there is no prospect of any

prosecution disclaimer. SeeOmega Engg., Inc. v. Raytek Corp., 334 F.3d 1314,

1325-26 (Fed. Cir. 2003) (finding that clear and unmistakable statements must be

made during prosecutionfor prosecution disclaimer to attach). Certainly, the

prosecution history does not support limiting the claim term extracting a 60-bit

rate-matched block to

2. The Inventors UsedWere the open-ended nature of the claims and specification not clear

enough, the extrinsic evidence confirms that extracting a 60-bit rate-matched

block must be construed to Even the

inventors themselvessuccessfully

Extrinsic evidence is an aid to the court in comingto a correct conclusion

as to the true meaning of the language employed in the patent.AIA Engg Ltd. v.

Magotteaux Intl. S/A, 657 F.3d 1264, 1273 (Fed. Cir. 2011) (citations omitted);

Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed, Cir. 1998) (the court

is looking to the extrinsic evidence to assist in its construction of the written

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document) (citingMarkman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed.

Cir. 1985) (en banc)). The inventors of the 644 patent

A10288:4-92:15, A8768-74. The

Id. The inventors specifically

A8770. Therefore, when the inventors were developing their invention, they used

If there were any

doubt that extracting a 60-bit rate-matched block should be construed to also

include the this extrinsic evidence should eliminate

it.

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3. The ALJs Definition Of Extracting, to Select (Excerpts)Or Copy Out Or Cite, Is Not Supported By The Intrinsic

Or Extrinsic Evidence

Although the Commission did not specify the construction it was using, any

reliance upon the ALJs definition of extract was unsound. See A314-15; A95-

96 (we adopt all findings of the ALJ that are consistent with our analysis here.).

(a) The Adoption of a Dictionary Definition WithoutConsulting the Intrinsic Record is Reversible Error

In analyzing claims 9 and 13, the ALJ incorrectly concluded that a receiver

cannot meet the limitation extracting a 60-bit rate-matchedblock if it

A314-15. Only by citing

to the fifth definition in Merriam-Websters Ninth New Collegiate Dictionary

(1985) did the ALJ find his chosen definition of extract. This is a non-technical,

English language dictionary that is not contemporaneous with the time of the 644

patent invention, and is not related to the field of art that one of ordinary skill in

the art of the 644 patent is directed to. See Phillips v. AWH Corp., 415 F.3d 1303,

1313 (Fed. Cir. 2005) (the ordinary and customary meaning of a claim term is the

meaning that the term would have to a person of ordinary skill in the art in

question at the time of the invention.) (emphasis added)(citation omitted).

Because the ALJ did not identify any evidence from the intrinsic record that would

support limiting extracting to a single definition in this edition of Websters

dictionary, he had no valid basis to rely on that particular dictionary definition. See

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Phillips, 415 F.3d at 1319 (holding that while dictionaries and other extrinsic

evidence may be helpful to understand certain terms, such evidence is unlikely to

result in a reliable interpretation . . . unless considered in the context of the

intrinsic evidence);Hoechst Celanese Corp. v. BP Chemicals Ltd., 78 F.3d 1575,

1580 (Fed. Cir. 1996) (a general dictionary definition is secondary to the specific

meaning of a technical term as it is used and understood in a particular technical

field.) (citingHormone Research Found., Inc. v. Genentech Inc., 904 F.2d 1558,

1563 (Fed. Cir. 1990)).

(b) The Chosen Dictionary Definition Contradicts theIntrinsic Record

To the extent the Commission used the ALJs definition, it did not explain

how it interpreted the definition. However, based on the application, not only does

the intrinsic record fail to support the ALJs dictionary definition, but it

affirmatively contradicts the definition. The specification makes clear that the UE

does not need to make an exact copy of bits as received in a signal. Nor could the

UE, even in theory, make an exact copy of the bits because the received signal is

analog, but the processing is digital. Moreover, the received signal contains

distortions, such that the signal is no longer the precise 1s and 0s originally

transmitted. Although the Node Bs and UEs use digital bits, the devices

communicate on the network by mapping those bits onto a physical channel and

transmitting them as an analog signal representing the digital bits. A10670:4-19,



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A10706:3-19, A11018:2-19:9. For the UE to use the information bits, there

necessarily has to be some processing to be able to obtain or derive the bits that are

received on the analog signal to a digital format. The Commissions construction,

therefore, would be impossible.

The specification confirms that the analog signal cannot be used as an exact

copy upon receipt. The UE extracts the 60-bit rate-matched block as follows:

Referring to Fig. 4, the UE receives a signal on an E-AGCH 402. A

physical channel demapper 404 extracts a rate-matched block from a

2-ms TTI on the received signal.

A6012(7:59-61). Because digital bits in the form of 1s and 0s are not

explicitly transmitted over airwaves, but rather are transmitted in the form of

analog waveforms representing 1s and 0s, it is impossible for the physical

channel demapper to merely select (excerpts) or copy out or cite the waveforms;

it must undertake some processing to determine whether those analog waveforms

are a 1 or a 0.

The specification also recognizes that the cellular transmission may

encounter noise. For example, the 644 discusses at length the bit and block error

rate, explaining how the invention seeks to minimize that error rate. A6011(5:46-

6:25). Given that noise and other interference affect signal transmission, wireless

receivers must account for possible disturbances. The constant reality of

interference means that the received signal can never be treated as a precise



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replication of the transmitted bits. Instead, the physical channel demapper must be

able to derive the value of the received bits after accounting for the interference.

For these reasons, the Commissions construction, select (excerpts) or copy

out or cite cannot possibly be correct. An interpretation such as that of the

Commission would mean any digital cellular system would not work. AIA Engg.

v. Magotteaux Intl S/A, 657 F.3d 1264, 1278 (Fed. Cir. 2011) (a construction that

renders the claimed invention inoperable should be viewed with extreme

skepticism) (quoting Talbert Fuel Sys. Patents Co. v. Unocal Corp., 275 F.3d

1371, 1376 (Fed. Cir. 2002)).

B. Under the Correct Construction, ApplesProducts Extract a 60-Bit Rate-Matched Block

Once a correct construction is in place, the conclusion that Apple infringes is

unavoidable. Applesproducts

The record evidence demonstrates that Node Bs transmit signals containing

precisely 60 bits. See, e.g., A10706:3-707:9, A10752:11-53:10. Interference may

occur; but no additional bits are ever created. Id. Thus, Apples products

Otherwise important information is lost. Id.

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Because there may have been interference during the transmission, Apples

products use

Id.

The record source code operation of Apples products is described above in

Statement of Facts sections II.A and II.B,supra. Under a proper construction of

extracting a 60-bit rate-matched block, the

by Apples productsas described in the

644 patent.

C. Apples Products Infringe the Remaining Limitations of Claims 9and 13 As Correctly Construed

Although the Commission did not explicitly address the other claim

limitations,4it is clear that they are infringed. For the reasons explained,supra,

4 The Commission reversed the ALJs finding that the checking the UE-ID

Specific CRC limitation was not infringed. A98.

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Apples products meet the limitations [a rate dematcher for] generating 90 coded

bits by rate dematching the rate-matched block according to a rate matching

pattern representing positions ofbits to be punctured and [a channel decoder for]

generating 6-bit control information and a 16-bit user equipment identifier (UE-ID)

specific cyclic redundancy check (CRC) by decoding the coded bits at a coding

rate of 1/3. The use of

For the element [a rate dematcher for] generating 90 coded bits by rate

dematching the rate-matched block according to a rate matching pattern

representing positions of bits to be punctured,once the claim is properly

construed to permit the evidence shows that

Apples products

A11081:25-82:11. When the

SeeStatement of

Facts, II,supra.

For the element, [a channel decoder for] generating 6-bit control

information and a 16-bit user equipment identifier (UE-ID) specific cyclic

redundancy check (CRC) by decoding the coded bits at a coding rate of 1/3,

Apples products similarly infringe. A11281:21-84:1.

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Id. Therefore, the decoder

decodes at a coded rate of 1/3.

D. Samsung has Satisfied the Domestic Industry Requirement OfSection 337

SamsungsDI products use Qualcomm Baseband Processors. A10694:16-

95:9, A10798:11-99:18, A10802:1-03:1, A8570. The source code in

]5

II. THE COMMISSION ERRED BY IGNORING EVIDENCE THATAPPLESPRODUCTS

SUCH THAT THEY FALL WITHIN THE

COMMISSIONS CONSTRUCTION OF EXTRACTING A 60-BITRATE-MATCHED BLOCK

Even if this Court finds the Commission did not err by using an incorrect

construction of extracting a 60-bit rate-matched block, the Commission

separately erred by ignoring important record evidence. The Commissions

reading of Dr. Mins testimony, which was its stated basis for finding

noninfringement, is not a fair reading. Once a fair reading is applied to Dr. Mins

5 The specific source code relating to the DI products is identified above in

the Statement of Facts, Section II.B.

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testimony, there is infringement even under the ALJs (and presumably the

Commissions) claim construction.

The Commission grounded its entire decision on its observation that

Samsungs expert, Dr. Min, supposedly gave up on testifying that the bits are

extracted. A95. But the Commission used ellipsis to arrive at an unrepresentative

account of Dr. Mins testimony and dismissed portions that contradict that account.

A94-95.

A review of the testimony, even as excerpted by the Commission,

demonstrates that the Commissions conclusion cannot hold. Were Apples

products to

The only way Apples

products can communicate is

A. The Commission Disregarded Key Portions of Dr. MinsTestimony that Confirm His View that Apples Products

The Commission concluded that Apple did not infringe the 644 patent

because Samsung did not prove that the devices in question

A94. The specific failure of proof that the Commission

purported to identify concerned a supposed concession by Dr. Min. Tellingly, the

Commission used ellipsis to find this concession:

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Commissions Misleading Quotation

of Dr. Mins Testimony

Dr. Mins Actual Testimony

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A94-95

A11302:6-1303:15 (emphasis added).

Dr. Min never gave up on To the contrary, he

consistently testified that Apple

Any confusion in that

regard is readily debunked by the key portions of his testimony, bolded above, that

were omitted by the Commission. When Apples attorney asked whether Apples

products Dr. Min clearly disagreed,

responding that Apple A11302:6-03:15. Dr.

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Min further explained that the

Id.

The Commission cannot fairly characterize Dr. Min as conceding something

when this precise testimony (from the very same transcript excerpt that the

Commission otherwise quotes) shows he testified as to the opposite. Dr. Min is the

only expert who testified on this subject, and no reasonable observer could

interpret his testimony as the Commission did. An interpretation where Apples

products never

defies not only the express terms of Dr. Mins testimonybut also means Apples

products would not work: Apples products Otherwise

they cannot

Dr. Min consistently testified that the

A10655:9-57:6, A11277:14-78:5. ApplesProducts

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A11302:6-03:15.

Once Dr. Mins testimony is properly considered in its entirety, the evidence

shows that the claims meet even the Commissions flawed construction. Apples

products would

B. The Commissions Construction Of Rate-Matched Block DoesNot Require The Extracted 60 Bits To Be Contiguous

The operative construction of rate-matched block is a block of channel-

coded bits that have been matched to transmittable bits on a physical channel by

puncturing or repeating bits at predetermined positions. A1282. More

specifically, the ALJ rejected Apples argument that the 60 bits must be

contiguous, finding the opposite true. Id.

The Commission acknowledges that its decision is at odds with the

construction of rate-matched block. Specifically, the Commission said it may

at first blush appear to be in tension with our determination. A96. In fact, the

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tension persists on final blush. Only with its mistaken account of Dr. Mins

testimony did the Commission purport to resolve it.

Dr. Mins testimony, read in full, makes clear that Apples products infringe

the 644 patent. As explained above,

are identified in

Statement of Facts Section II. The fact that the 60 bits are

For the same reasons explained above in Argument Sections I.C and I.D, the

remaining limitations of the 644 claims are infringed, and Samsung has also

shown that its DIproducts practice the 644 claims.

III. THE COMMISSION ERRED BY EMBRACING THE ALJSPATTERN OF EVIDENTIARY RULINGS THAT AFFORDED

APPLE THE BENEFIT OF BELATED NONINFRINGEMENT

ARGUMENTS WHILE DENYING SAMSUNG THE OPPORTUNITY

TO RESPOND

Because Apple withheld its argument until after discovery

closed and expert reports were due, opinions surrounding the argument were

properly excluded. A3554-55. The ALJ ruled

13-10-31 Samsung Opening Brief in Appeal of ITC-794 Ruling

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