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 SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, Appellants, v. INTERNATIONAL TRADE COMMISSION, Appellee, and APPLE, INC. Intervenor. On Appeal from the United States International Trade Commission Investigation No. 337-TA-794 APPELLANTS OPENING BRIEF Charles K. Verhoeven QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California St., 22nd Floor San Francisco, CA 94111 (415) 875-6600 Kevin P. Johnson Victoria F. Maroulis QUINN EMANUEL URQUHART & SULLIVAN, LLP 555 Twin Dolphin Dr., 5th Floor Redwood Shores, CA 94065 (650) 801-5000 Alan L. Whitehurst Derek L. Shaffer Marissa R. Ducca QUINN EMANUEL URQUHART & SULLIVAN, LLP 1299 Pennsylvania Ave, NW #825 Washington D.C. 20004 (202-538-8109 Attorneys for Appellants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC
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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, ii
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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 iii
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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. Verhoeven QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor iv
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San Francisco, CA 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 charlesverhoeven@quinnemanuel.com Attorney for Appellants
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TABLE OF CONTENTS Page INTRODUCTION ..................................................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 5 STATEMENT OF THE ISSUES............................................................................... 6 STATEMENT OF THE CASE .................................................................................. 7 STATEMENT OF FACTS ........................................................................................ 9 I. TECHNOLOGY BACKGROUND................................................................. 9 A. Transmission and Recovery of the Absolute Grant (AG) ................... 10 1. 2. 3. 4. 5. 6. 7. 8. B. C. II. Formation of the ID specific CRC Attachment (30 bits) .......... 11 Coding of the AG (30 to 90 bits) .............................................. 11 Puncturing of the Coded Bits (90 to 60 bits) ............................ 11 Transmission of the 60 bits ....................................................... 12 Extraction of the 60 bits ............................................................ 12 Depuncturing of the Coded Bits (60 to 90 bits) ........................ 14 Decoding of the Coded Bits (90 to 30 bits) .............................. 14 Recovery of the UE ID specific CRC Attachment (30 bits)............................................................................................ 15 .......................................................................................... 15 Dr. Mins Testimony About ........................................... 19
ACCUSED PRODUCTS ............................................................................... 23 A. B. Source Code in the iPhone 4 and iPad 2 ............................................. 23 Source Code in Qualcomm Chip in iPhone 4S ................................... 28 vi
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III. IV.
ASSERTED CLAIMS ................................................................................... 30 APPLES LATE DISCLOSURE OF ITS ARGUMENT ................................................................................................. 32
SUMMARY OF THE ARGUMENT ...................................................................... 36 STANDARD OF REVIEW ..................................................................................... 38 ARGUMENT ........................................................................................................... 39 I. THE COMMISSION ERRED BY CONSTRUING EXTRACTING A 60-BIT RATE-MATCHED BLOCK TO EXCLUDE PRODUCTS THAT .................................................................................................... 39 A. Contrary to the Commissions Construction, Extracting a 60Bit Rate-matched Block Does Not Exclude .................................................................................................... 40 1. Nothing in the Specification or File History Precludes the ............................................................ 41 2. 3. The Inventors Used ................................................................................. 46 The ALJs Definition Of Extracting, to Select (Excerpts) Or Copy Out Or Cite, Is Not Supported By The Intrinsic Or Extrinsic Evidence ......................................... 48 (a) (b) B. The Adoption of a Dictionary Definition Without Consulting the Intrinsic Record is Reversible Error ...... 48 The Chosen Dictionary Definition Contradicts the Intrinsic Record .............................................................. 49
Under the Correct Construction, Apples Products Extract a 60-Bit Rate-Matched Block ............................................................... 51
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C. D. II.
Apples Products Infringe the Remaining Limitations of Claims 9 and 13 As Correctly Construed ........................................................ 52 Samsung has Satisfied the Domestic Industry Requirement Of Section 337 .......................................................................................... 54
THE COMMISSION ERRED BY IGNORING EVIDENCE THAT APPLES PRODUCTS SUCH THAT THEY FALL WITHIN THE COMMISSIONS CONSTRUCTION OF EXTRACTING A 60-BIT RATE-MATCHED BLOCK .......................................................... 54 A. The Commission Disregarded Key Portions of Dr. Mins Testimony that Confirm His View that Apples Products ..................................................................... 55 The Commissions Construction Of Rate-Matched Block Does Not Require The Extracted 60 Bits To Be Contiguous ...... 59
B. III.
THE COMMISSION ERRED BY EMBRACING THE ALJS PATTERN OF EVIDENTIARY RULINGS THAT AFFORDED APPLE THE BENEFIT OF BELATED NONINFRINGEMENT ARGUMENTS WHILE DENYING SAMSUNG THE OPPORTUNITY TO RESPOND .................................................................. 60 A. The ALJ Abused His Discretion by Not Permitting Samsung to Submit a Rebuttal Expert Report to Rebut Apples LateDisclosed Noninfringement Arguments .............................................. 61 The ALJ Abused His Discretion By Permitting Apple to CrossExamine Dr. Min Outside The Scope of Direct Examination ............ 63 The ALJ Further Abused His Discretion By Prohibiting Samsung From Asking Its Own Responsive Questions of Dr. Min ...................................................................................................... 64 The ALJ and Commission Abused Their Discretion By Considering Apples Late-Disclosed Noninfringement Arguments ........................................................................................... 65
B. C.
D.
CONCLUSION ........................................................................................................ 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 Cease and 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, Dated September 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, 4648, 51-6, and 6-6 of 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 entered August 4, 2011. The material omitted from these pages contains confidential deposition and hearing testimony, confidential business information, and confidential patent application information of Samsung, Apple, third party Intel, and third party Qualcomm.
The Addendum is bound as two separate volumes. ix
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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 x
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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_____ AG ALJ Commission CRC DI HSUPA ID Node B Section 337/ 337 UE UMTS 644 Asserted Claims 644 Patent The cited page(s) of the Joint Appendix Absolute Grant Administrative Law Judge United States International Trade Commission Cyclic Redundancy Check Domestic Industry High-Speed Uplink Packet Access Initial Determination (A187-830) Base Station 19 U.S.C. 1337 User Equipment Universal Mobile Telecommunication System Claims 9 and 13 of U.S. Patent No. 7,486,644 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-CV00573-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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NONCONFIDENTIAL 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 the Node 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 ratematching 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 ratematched 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 1
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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 forbid inclusion of any despite the use of comprising. By
doing so, the Commission committed reversible error. It is abundantly clear that Apples products 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 it by 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 newlydisclosed argument. Second, the ALJ led Samsung to believe that Dr. Min would 3
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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 reversing the 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-matched block to exclude Apples products that
2.
Whether the Commission erred by ignoring evidence that Apples such that they fall
products ultimately
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 products extracted 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 order based 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 BACKGROUND The 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 (EDCH). 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 10
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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 UEID 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(6:5558). 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 11
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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 bits
The 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 bits
When 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, A10752:1153:10. To be clear, it is not possible for the UE to extract more than 60 bits, because they do not exist. Id. Similarly, the UE cannot extract less than 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 cannot ignore 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 products is
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 About
As 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 infringe, Dr. Min mentioned later did Apple first seize upon did not
only in passing in his expert report. Only as a noninfringement argument.
Because Apples argument came late, its expert was prohibited from testifying about on during the Hearing. A3554-55. Therefore, the only testimony during the Hearing was from Dr. Min. Because it was not material during his
to his infringement opinions, Dr. Min did not testify about
direct examination. On cross examination, however, Apple asked Dr. Min about Samsung objected, and the ALJ overruled the objection. A10832:519
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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 disputed whether information and never Instead,
Apple took the unsupported position that to extract, Apples products 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 20
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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 Apples attorney was trying to get Dr. Min to admit that Apple Instead
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 PRODUCTS Samsung 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 2
The 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 Apples products 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 14, A15025. 27 A10784:11-
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B.
Source Code in Qualcomm Chip in iPhone 4S
The 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).
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 28
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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, 29
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A10809:2210:9. 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 CLAIMS Claims 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 uplink packet 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; generating 90 coded bits by rate-dematching the rate-matched block according to a rate matching pattern representing positions of bits to be depunctured; 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; and 30
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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 block from a signal received from a Node B; 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 depunctured; a channel decoder for generating 6-bit control information and a 16bit 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 31
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operate. There is, however, a dispute whether the claims forbid the presence of the
IV.
APPLES LATE DISCLOSURE OF ITS Apple did not disclose its
ARGUMENT
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 did not in more detail.
infringement opinions and Apple had never indicated that infringe, there was no reason for him to go into 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 decision and that this tactical decision had 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 responsive to Apples late-disclosed noninfringement arguments, Apple objected. Despite his clear ruling, the ALJ sustained the objection thereby 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 the infringement analysis. II. The Commission erred under its own construction of extracting a 60have no place in
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 they and affirmatively changed his testimony to say 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 that, when the products Dr. Min made clear
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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 Samsungs witness on cross-examination, even though Samsung had not opened 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 discretion.
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STANDARD OF REVIEW This Court reviews the Commissions legal determinations de novo and 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 novo on 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) (citing NEC Corp. v. United 38
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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) (citing Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 772 (Fed. Cir. 1993)); see also Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1378 (Fed. Cir. 2009) (A trial courts determination of an 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 A 60-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 comprising that appears in claims 9 and 13 of the 644 patent. Properly read, the term extracting a 60-bit ratematched block does not exclude unclaimed limitations or steps. But the Commission found noninfringement merely because Apples products
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A.
Contrary to the Commissions Construction, Extracting a 60-Bit Rate-matched Block Does Not Exclude
The Commission erred when it construed the term extracting a 60-bit ratematched 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) (citing Phillips 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) (citing Phillips, 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) (citing Interactive 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 uplink packet 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).
Under Samsungs proposed construction, the term extract means processing to obtain or derive, for some processing must occur to obtain or derive, in digital format, the bits that are received on an analog signal. A5502-08.
3
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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) (citing Crystal 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 comprising claim to allow additional steps); Vivid Techs., Inc. v. American Science & Engg., Inc., 200 F.3d 795, 811 (Fed. Cir. 1999) (reversing summary judgment because 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 42
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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 those recited in the claim. See Invitrogen Corp. v. Biocrest Mfg., L.P., 327 F.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 ratematched 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) (quoting LiebelFlarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (cautioning against inserting limitation absent clear disclaimer)); Teleflex, Inc. v. Ficosa N. 43
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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, the 644 patent specification 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 60bit rate-matched block simply as the process of receiving the 60 bits that were transmitted by the Node B. Nowhere does the 644 patent specification restrict the UE from processing those 60 bits in any particular way so long as the UE extracts the 60 bits it receives.
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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. See Omega Engg., Inc. v. Raytek Corp., 334 F.3d 1314, 1325-26 (Fed. Cir. 2003) (finding that clear and unmistakable statements must be made during prosecution for 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 Used
Were 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 inventors themselves successfully Even the
Extrinsic evidence is an aid to the court in coming to 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 46
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document) (citing Markman 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 it. this extrinsic evidence should eliminate
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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; A9596 (we adopt all findings of the ALJ that are consistent with our analysis here.). (a) The Adoption of a Dictionary Definition Without Consulting 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-matched block 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 48
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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.) (citing Hormone Research Found., Inc. v. Genentech Inc., 904 F.2d 1558, 1563 (Fed. Cir. 1990)). (b) The Chosen Dictionary Definition Contradicts the Intrinsic 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, 49
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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(5:466:25). 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 50
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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, Apples Products Extract a 60Bit Rate-Matched Block
Once a correct construction is in place, the conclusion that Apple infringes is unavoidable. Apples products
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 products as described in the 644 patent. C. Apples Products Infringe the Remaining Limitations of Claims 9 and 13 As Correctly Construed
Although the Commission did not explicitly address the other claim limitations,4 it is clear that they are infringed. For the reasons explained, supra, The Commission reversed the ALJs finding that the checking the UE -ID Specific CRC limitation was not infringed. A98.
4
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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 of bits 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 Apples products A11081:25-82:11. When the See Statement 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. the evidence shows that
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Id. Therefore, the decoder decodes at a coded rate of 1/3. D. Samsung has Satisfied the Domestic Industry Requirement Of Section 337
Samsungs DI products use Qualcomm Baseband Processors. A10694:1695:9, A10798:11-99:18, A10802:1-03:1, A8570. The source code in
]5 II. THE COMMISSION ERRED BY IGNORING EVIDENCE THAT APPLES PRODUCTS SUCH THAT THEY FALL WITHIN THE COMMISSIONS CONSTRUCTION OF EXTRACTING A 60-BIT RATE-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
The specific source code relating to the DI products is identified above in the Statement of Facts, Section II.B. 54
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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. Mins Testimony 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: 55
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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 consistently testified that Apple
To the contrary, he
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 responding that Apple Dr. Min clearly disagreed, 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 testimony but also means Apples products would not work: Apples products they cannot Dr. Min consistently testified that the Otherwise
A10655:9-57:6, A11277:14-78:5. Apples Products
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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 Does Not Require The Extracted 60 Bits To Be Contiguous
The operative construction of rate-matched block is a block of channelcoded 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 DI products practice the 644 claims. III. THE COMMISSION ERRED BY EMBRACING THE ALJS PATTERN 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 that Apple made a tactical decision and Samsung was prejudiced. Id. The ensuing evidentiary rulings, however, afforded Apple every benefit of its belated arguments, while
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exacerbating the prejudice to Samsung to the point that Samsung was prevented from even responding to the arguments at the hearing. First, the ALJ did not permit Dr. Min to submit a supplemental report to rebut Apples arguments. Second, the ALJ offered assurance that Apple could cross-examine Dr. Min only to the extent of Samsungs direct examination, and only with opportunity for Dr. Min to respond. Third, the ALJ allowed Apple to cross-examine Dr. Min even though he did not testify about during his
direct examination. Finally, the ALJ did not allow Dr. Min to opine on the doctrine of equivalents, even though it was directly and newly implicated by Apples late-disclosed arguments. Such inconsistent handling of the issue was an abuse of
discretion that unduly favored Apple and unduly prejudiced Samsung. If the Court finds no other basis for reversal, it should, at a minimum, rectify the evidentiary rulings and remand for further evidentiary findings. A. The ALJ Abused His Discretion by Not Permitting Samsung to Submit a Rebuttal Expert Report to Rebut Apples Late-Disclosed Noninfringement Arguments
The ALJ abused his discretion when he denied Samsungs motion for leave to supplement Dr. Mins expert report to address Apples late-disclosed noninfringement arguments. A1383-86. This ruling prevented Samsung from putting on any affirmative testimony regarding these defenses at the Hearing. 61
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Despite the obvious prejudice to Samsung, the Commission ultimately considered and credited Apples arguments on the basis of an incomplete record. The Commission abused its discretion by finding noninfringement based on an incomplete record. See Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 891 (Fed. Cir. 1983) (finding error when a determination was made on less than the entirety of a complete record); Kemin Foods, L.C. v. Pigmentos Vegetales del Centro S.A. de C.V., 464 F.3d 1339, 1350-52 (Fed. Cir. 2006) (finding an abuse of discretion to strike a supplemental expert report). The record in this case is incomplete. Because Apple made a tactical decision, Dr. Min had no reason to address the aspects of the technology that formed the basis of Apples arguments. The are extraneous because they are not claimed by the
644 patent. Even so, the ALJ permitted Apple to make these arguments using purely attorney argument while foreclosing Samsung from properly responding through its expert. Order 86 highlights the abuse of discretion. There, the ALJ indicated that if Apple cross examined Dr. Min during the hearing, Dr. Min will be permitted to offer responsive opinions. A3573. Yet, while Apple was permitted to venture outside the scope of direct in cross-examining Dr. Min, Samsung was not permitted to then redirect Dr. Min within the scope of the subject matter Apple first raised in cross. 62
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B.
The ALJ Abused His Discretion By Permitting Apple to CrossExamine Dr. Min Outside The Scope of Direct Examination
The ALJ acknowledged that Samsung was prejudiced by Apples failure to timely disclose its noninfringement arguments. A3554-55. Given this prejudice, as well as the ALJs denial of Samsungs Motion for Leave to Supplement Dr. Mins Infringement Report, Samsung was careful to avoid opening the door during Dr. Mins direct examination to any of Apples late-disclosed theories. See Statement of Facts, Section IV. The ALJ abused his discretion by nonetheless permitting Apple to cross-examine Dr. Min regarding Apples late-disclosed noninfringement arguments, contrary to the ALJs own rules. Samsung did not open the door to cross-examination simply by
asking Dr. Min about the source code. In its direct examination, Samsung specifically avoided the portions of code that were irrelevant to infringement and implicated only by Apples noninfringement argument. See Statement of Facts, Section IV. For example, Samsung limited its questioning only to the . Id. Samsung did not ask Dr. Min anything about the This extraneous code was no
more relevant to the 644 infringement analysis than other extraneous portions of code, such as that addressing Wi-Fi functionality.
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To conclude that Samsung opened the door simply by asking Dr. Min questions about specific source code that was part of Samsungs timely-disclosed theory of infringement is to conclude that Samsung opened the door to any and all questions Apple might want to ask about any aspects of source code or functionality in Apples products. In essence, Apple was free to cross-examine Dr. Min on any subject of its choosing. This in itself is an abuse of discretion. C. The ALJ Further Abused His Discretion By Prohibiting Samsung From Asking Its Own Responsive Questions of Dr. Min
The ALJ stated that, if Apple cross-examined Dr. Min regarding the late disclosed noninfringement arguments, Dr. Min will be permitted to offer responsive opinions. A3573. After Apple was improperly permitted to crossexamine Dr. Min on its late-disclosed arguments, Samsung started to question Dr. Min regarding his responsive opinions on infringement under the doctrine of equivalents. A11299:17-23. Yet, the ALJ sustained Apples objection and prohibited Dr. Min from offering appropriate responsive opinions as expressly permitted by the ALJs own Order. See Statement of Facts Section IV; A11288:12-300:4. This compounded the prejudice to Samsung and compromised the entire record. Because none of Apples noninfringement arguments were properly disclosed during discovery, Samsung could not predict how Apple might conduct its cross-examination of Dr. Min. All Samsung could do was confine its direct 64
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examination to the infringement theory that it had properly disclosed. A10832:545:5. When the ALJ nonetheless allowed Apple to venture outside the scope of direct examination, he effectively opened up inquiry that Samsung could not manage except by responding on redirect. But, here too, Samsung was prejudiced. Had Apple properly been prevented from cross-examining Dr. Min in search of affirmative support for its arguments, Samsung would not have
needed to ask Dr. Min about the doctrine of equivalents as an alternative to literal infringement. Notably, the Commission ultimately found Apple did not infringe based solely on the late-disclosed noninfringement arguments. It is especially unfair for the Commission and ALJ to treat Dr. Min as supplying affirmative support for Apple in this circumstance where Samsung was denied its own corresponding opportunity to ask responsive questions that stood to expand and clarify the record, specifically with respect to the doctrine of equivalents. U.S. v. Moran, 493 F.3d 1002, 1012-14 (9th Cir. 2007) (finding error where testimony that fell within the scope of redirect was excluded); see also 5 U.S.C. 556(d) (providing that a party to a 337 agency proceeding is entitled to full crossexamination to submit rebuttal evidence). D. The ALJ and Commission Abused Their Discretion By Considering Apples Late-Disclosed Noninfringement Arguments
Given all of the prejudice to Samsung, the Commission abused its discretion when it considered Apples late-disclosed arguments at all. The ALJ rightly 65
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acknowledged that Samsung was prejudiced by Apples failure to timely disclose its noninfringement arguments. A3554-55. Moreover, the ALJ found that Apples decision to wait to disclose its noninfringement theories was purely tactical. Id. (finding that Samsung was prejudiced, and that [r]espondent made th e tactical decision to wait until after the initial expert reports were filed to expend its efforts on a summary determination motion. . . . If Respondent had the time and resources to expend on such a motion, it had the time and resources to expend on a motion seeking leave to amend contention interrogatories). The Commissions consideration and reliance on Apples late-disclosed noninfringement positions exacerbated the prejudice to Samsung and rewarded Apple for its tactical decision to violate basic rules of fairness. Apple was effectively rewarded for its delay. Apple was able to make and win the same arguments, while successfully preventing Samsung from offering rebuttal that Samsung would have offered had Samsung timely learned of Apples arguments. Should this Court not reverse the finding of noninfringement on the merits, the Court should find the Commission abused its discretion and reverse the finding of infringement based on arguments that should have been excluded. Alternatively, this Court should reverse and remand to allow Samsung to submit
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additional expert testimony rebutting the late-disclosed arguments that Samsung was denied opportunity to address. CONCLUSION Samsung respectfully requests that the Commissions Final Determination that Apple did not violate Section 337 with respect to the 644 patent be reversed. Alternatively, Samsung respectfully requests that the Investigation be remanded so that Samsung can offer evidence it was prevented from offering during the Investigation.
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Dated: October 31, 2013 Respectfully submitted,
/s/ Charles K. Verhoeven QUINN EMANUEL URQUHART SULLIVAN, LLP Charles K. Verhoeven charlesverhoeven@quinnemanuel.com 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 Kathleen M. Sullivan kathleensullivan@quinnemanuel.com Thomas Pease thomaspease@quinnemanuel.com William Adams williamadams@quinnemanuel.com 51 Madison Ave., 22nd Floor New York, New York 10010 Telephone: (212) 849-7000 Facsimile: (212) 849-7100 Paul F. Brinkman paulbrinkman@quinnemanuel.com Alan L. Whitehurst alanwhitehurst@quinnemanuel.com S. Alex Lasher alexlasher@quinnemanuel.com Derek Shaffer derekshaffer@quinnemanuel.com Marissa R. Ducca marissaducca@quinnemanuel.com 1299 Pennsylvania Ave. NW, Ste. 825 Washington D.C. 20004 Telephone: (202) 538-8000 Facsimile: (202) 538-8100 68
&
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Kevin P.B. Johnson kevinjohnson@quinnemanuel.com Victoria F. Maroulis victoriamaroulis@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor Redwood Shores, CA 94065 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 Robert J. Becher robertbecher@quinnemanuel.com 865 S. Figueroa St., 10th Floor Los Angeles, CA 90017 Telephone: (213) 443-3000 Facsimile: (213) 443-3100 Counsel for Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC
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PROOF OF SERVICE I hereby certify that on this 31st day of October, 2013, I will electronically file the confidential and non-confidential versions of the Appellants Opening Brief with the Clerk of Court using the CM/ECF System, which will serve via email notice of such filing to all the counsel registered as CM/ECF users. On this date, I will also cause two confidential paper copies to be served on the below counsel via FedEx overnight delivery. Counsel for Appellee U.S. International Trade Commission: Clark S. Cheney Attorney Advisor Office of the General Counsel U.S. International Trade Commission 500 E Street, S.W., Suite 707 Washington, DC 20436 clark.cheney@usitc.gov Counsel for Intervenor Apple Inc.: William F. Lee Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 02109 William.Lee@wilmerhale.com Upon acceptance by the Court of the e-filed document, six paper confidential copies will be filed with the Court, via Federal Express, within the time provided in the Courts rules. /s/ Charles K. Verhoeven__________ Charles K. Verhoeven 70
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CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the foregoing Appellants Opening Brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B). The word-processing system used to prepare the document, excluding Table of Contents, Table of Authorities, and the Certificate of Interest, calculates that it contains the following number of words: 13,880. This brief was printed using a 14 point Times New Roman font.
/s/ Charles K. Verhoeven__________ Charles K. Verhoeven
71

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

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

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Case: 13-1519

Filed: 10/31/2013 CONFIDENTIAL

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ASSERTED CLAIMS ................................................................................... 30 APPLES LATE DISCLOSURE OF ITS ARGUMENT ................................................................................................. 32

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The Addendum is bound as two separate volumes. ix

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rate-matched block to exclude Apples products that

Transmission and Recovery of the Absolute Grant (AG)

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Depuncturing of the Coded Bits (60 to 90 bits)

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Recovery of the UE ID specific CRC Attachment (30 bits)

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

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

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Id. C. Dr. Mins Testimony About

only in passing in his expert report. Only as a noninfringement argument.

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

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determined. Dr. Min consistently testified that:

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Source Code in the iPhone 4 and iPad 2

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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

This can be seen in

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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 14, A15025. 27 A10784:11-

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Source Code in Qualcomm Chip in iPhone 4S

A15093(4S), A15149 (DI), A10807:1-20, A10810:10-12.

Id. The code reflects the

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

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APPLES LATE DISCLOSURE OF ITS Apple did not disclose its

argument until after the close of

argument until March 5, 2012 when it

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