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Construing the Construction: Federal Circuit Chips Away at IPR Win

Addressing claim construction issues in inter partes review (IPR) proceedings before the Patent Trial & Appeal Board (Board), the US Court of Appeals for the Federal Circuit affirmed an obviousness finding as to some claims but reversed and remanded an obviousness finding as to another claim because of a claim construction error. VLSI Technology LLC v. Intel Corporation, Case Nos. 21-1826, -1827, -1828 (Fed. Cir. Nov. 15, 2022) (Chen, Bryson, Hughes, JJ.)

VLSI owns a patent directed to a technique for alleviating the problems of defects caused by stress applied to bond pads of an integrated circuit. Bond pads are a portion of an integrated circuit that sit above interconnected circuit layers and are used to attach the chip to another electronic component, such as a computer or motherboard. When a chip is attached to another electronic component, forces are exerted on the chip’s bond pad, which can result in damage to the interconnect layers. The patent discloses improvements to the structures of an integrated circuit that reduce the potential for damage to the interconnect layers when the chip is attached to another electronic component while also permitting each of the layers underlying the pad to be functionally independent in the circuit.

VLSI filed suit against Intel alleging infringement of the patent. During claim construction, the district court construed the claim term “force region” to mean a “region within the integrated circuit in which forces are exerted on the interconnect structure when a die attach is performed.” Before the district court’s construction but after the suit was filed, Intel filed petitions for IPR of the patent and advocated in its petitions for the same construction of “force region” that the district court ultimately adopted.

VLSI did not contest Intel’s construction, but it later became apparent that the two parties disagreed over the meaning of “die attach,” which formed part of the construction. Intel argued that the term “die attach” refers to any method of attaching a chip to another electronic component, including a method known as wire bonding, which was taught by a prior art reference included in Intel’s petitions. VLSI argued that the term refers to a method of attachment known as “flip chip” bonding and does not include wire bonding. In the Board’s final written decisions, it did not address the term “die attach,” but found that “force region” was not limited to flip chip bonding and subsequently found the challenged claims invalid as obvious. The Board also construed a second disputed term “used for electrical interconnection not directly connected to the bond pad,” which is recited in only one claim of the patent, in favor of Intel, and subsequently found that claim unpatentable. VLSI appealed.

On appeal, VLSI raised a number of procedural and substantive challenges to the Board’s construction of the two disputed terms. VLSI argued that the Board failed to acknowledge and give appropriate weight to the district court’s construction of “force region.” The Federal Circuit dismissed this argument, as there was ample evidence in [...]

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Delayed Disclaimer: Patent Owner Arguments Made during IPR Not a Claim Limiting Disclaimer in That Proceeding

Repeating a conclusion from an earlier non-precedential opinion in VirnetX, the US Court of Appeals for the Federal Circuit held that the Patent Trial & Appeal Board (Board) need not accept a patent owner’s arguments as a disclaimer in the very same inter partes review (IPR) proceeding in which those arguments are made. CUPP Computing AS v. Trend Micro Inc., Case Nos. 2020-2262, 2020-2263, 2020-2264, at *11 (Fed. Cir. Nov. 16, 2022) (Dyk, Taranto, Stark, JJ.)

CUPP Computing is the owner of three related patents each entitled “systems and methods for providing security services during power management mode.” After CUPP sued Trend Micro for patent infringement, Trend Micro filed petitions for IPR against all three patents, asserting that several claims of CUPP’s patents were obvious over two prior art references. The Board instituted all three IPR and found all challenged claims unpatentable as obvious. CUPP appealed.

The Federal Circuit affirmed the Board’s conclusions. The principal issue concerned CUPP’s argument that the Board erred in claim construction. In CUPP’s view, all of the evidence required the claimed “security system processor” be remote from a “mobile device processor.” The Court rejected CUPP’s arguments. Starting with the claims, the Court found that they simply required that the two processors be different. Although some claims required the security system to send a wake signal to or communicate with the mobile device, that language did not support CUPP’s remoteness construction. As the Court explained, just as an individual can send a note to oneself via email, a unit of the mobile device can send signals to and communicate with the same device. Indeed, some of the claims teach communication via an internal port of the mobile device, which was consistent with a preferred embodiment disclosed in the specification in which the two processors could be within the same mobile device.

The Federal Circuit then addressed CUPP’s disclaimer arguments. The Court agreed with the Board that CUPP’s statements made during the original prosecution were far from clear and unmistakable, being susceptible to several reasonable interpretations that are contrary to CUPP’s construction. The Court also agreed with the Board that CUPP’s arguments during the Trend Micro IPRs do not qualify as a disclaimer for purposes of claim construction. While a disclaimer made during an IPR proceeding is binding in subsequent proceedings, the “Board is not required to accept a patent owner’s arguments as disclaimer when deciding the merits of those arguments.”

As the Federal Circuit explained, expanding the application of disclaimers to the proceedings in which they are made—as CUPP proposed—is rife with problems. IPR proceedings are more similar to district court litigation than they are to initial examination, and it is well established that disclaimers in litigation are not binding in the proceeding in which they are made. Further, CUPP’s proposal would effectively render IPR claim amendments unnecessary, as patent owners would be free to change the scope of their claims retrospectively without regard to the protections provided by the IPR claim amendment process, such as [...]

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Family Matters, but Only Sometimes if Claim Construction Is Involved

The US Court of Appeals for the Federal Circuit reversed a district court’s claim construction, explaining that the use of a restrictive term in a definition in an earlier application does not reinstate that term in a later patent that purposely deletes the term, even if the earlier patent is incorporated by reference. Finjan LLC v. ESET, LLC, Case No. 21-2093 (Fed. Cir. Nov. 1, 2022) (Prost, Reyna, Taranto, JJ.)

Finjan filed a lawsuit against ESET for infringement of five patents directed to systems and methods for detecting computer viruses in a “downloadable” through a security profile. Each of the asserted patents was part of the same family, and each claimed priority to the same provisional application. The term “downloadable” appeared in the claims of all the asserted patents but was defined slightly differently in the various patents in the family. The original provisional application defined “downloadable” as “an executable application program which is automatically downloaded from a source computer and run on the destination computer.” Two of the non-asserted patents in the family defined “downloadable” as “applets” and as “a small executable or interpretable application program which is downloaded from a source computer and run on a destination computer.” Two of the asserted patents defined “downloadable” as “an executable application program, which is downloaded from a source computer and run on the destination computer.” The two asserted patents incorporated by reference one of the non-asserted patents. The other three asserted patents did not include a definition of “downloadable,” but they incorporated by reference one of the asserted patents and one of the non-asserted patents that defined “downloadable.”

The district court construed the term “downloadable” as used in the asserted patents to mean “a small executable or interpretable application program which is downloaded from a source computer and run on a destination computer.” The district court based its construction on the incorporation by reference of one of the non-asserted patents, reasoning that although the patent family contained “somewhat differing definitions,” these definitions “can be reconciled.” In particular, the district court found that based on the definitions and examples included throughout the various patents in the family tree, the term “downloadable” in the asserted patents should be construed to include the word “small” as defined in the non-asserted patent. ESET moved for summary judgment of invalidity due to indefiniteness based on the word “small” as used in the adopted construction of “downloadable.” The district court granted the motion. Finjan appealed.

The Federal Circuit began by reciting the well-known maxim that claims must be read in light of the specification, which includes any patents incorporated by reference since those patents are “effectively part of the host patents as if they were explicitly contained therein.” However, the Court explained that “incorporation by reference does not convert the invention of the incorporated patent into the invention of the host patent.” Instead, the disclosure of the host patent provides context to determine what impact, if any, the patent incorporated by reference will have on the [...]

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Establishing Indefiniteness Requires More Than Identifying “Unanswered Questions” Part II

Earlier this year, the US Court of Appeals for the Federal Circuit reversed a district court decision for relying on an incorrect standard for indefiniteness. (Nature Simulation Systems Inc. v. Autodesk, Inc). Now, in response to a motion for panel rehearing, the Federal Circuit modified its decision on rehearing deleting language. Nature Simulation Systems Inc. v. Autodesk, Inc., Case No. 20-2257 (Fed. Cir. Oct. 17, 2022) (Lourie, Dyk, Newman JJ.) (Dyk, J., dissenting)

Nature Simulations Systems asserted two patents against Autodesk (one a continuation-in-part of the other), both entitled “Method for Immediate Boolean Operations Using Geometric Facets.” According to the patents, the claimed methods are improvements upon a “Watson” method known in the prior art. The district court concluded that two terms—“searching neighboring triangles of the last triangle pair that holds the last intersection point” and “modified Watson method”—were invalid as indefinite based on “unanswered questions” regarding the scope of the claims posed by Autodesk’s expert. In the first reported decision, the Federal Circuit reversed. The Court held that the “unanswered questions” analysis used an incorrect legal standard, citing the specification as clarifying the scope of the claims and citing case law on deference to US Patent & Trademark Office examiners.

Following rehearing, the Federal Circuit slightly modified its decision in two primary ways but maintained its reversal of the district court’s ruling on indefiniteness.

First, the Federal Circuit added an explanation regarding how the specification answers the questions raised by Autodesk. The Court stated that “the language that the court stated ‘is not contained in the claim language’ is in the specification,” and cited a flowchart and accompanying description in the patent. The Court found fault in Autodesk’s argument because “[t]he claims set forth the metes and bounds of the invention; they are not intended to repeat the detailed operation of the method as described in the specification.”

Second, the Federal Circuit backed away from its previous reliance on deference to the examiner. In its earlier decision, the Court explained that the examiner had issued rejections for indefiniteness but withdrew them after amendments to the claims. The Court then spent a little over a page of the opinion explaining that, as official agency actors experienced in the technology and legal requirements for patentability, patent examiners are entitled to “appropriate deference.” Following rehearing, the Court removed the portion of the opinion addressing examiner deference entirely while maintaining the criticism that the district court gave “no weight to the prosecution history showing the resolution of indefiniteness by adding the designated technologic limitations to the claims.” In support, the Court cited cases holding that claims are construed in light of the specification and file history from the perspective of skilled artisans.

Judge Dyk again dissented, stating that “[t]he fact that a patent examiner introduced the indefinite language does not absolve the claims from the requirements of 35 U.S.C. § 112.” Judge Dyk argued that far from adopting a flawed “unanswered questions” analysis, the district court’s analysis was detailed and [...]

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Present-Tense Claim Terms Not Sufficient to Require Actual Operation

The US Court of Appeals for the Federal Circuit affirmed a US International Trade Commission (Commission) decision that found no violation of Section 337 due to noninfringement. The Court disagreed with the Commission that the use of present-tense claim terms required actual operation to be shown to prove infringement, but nevertheless affirmed the Commission’s finding because the patentee failed to establish that the accused products were capable of carrying out the claimed functionality. INVT SPE LLC v. ITC, Case No. 20-1903 (Fed. Cir. Aug. 31, 2022) (Newman, Taranto, Chen, JJ.)

In 2018, INVT filed a complaint at the Commission alleging a Section 337 violation by various cell phone companies. INVT asserted that five of its patents were infringed by the 3G and LTE networking standards used by mobile devices (such as cell phones) to communicate with base stations (such as cell phone towers). INVT withdrew two of the asserted patents during the course of the investigation, and the Administrative Law Judge (ALJ) issued an initial determination holding that there was no Section 337 violation because none of the three remaining patents were infringed. The Commission did not disturb that decision on review, and INVT appealed on two of the three asserted patents in June 2020.

Briefing during the appeal was extended several times, and as a result, oral argument did not occur until November 2021. The Federal Circuit then asked for supplemental briefing regarding whether there could be any relief on one of the patents scheduled to expire in March 2022. The Court ultimately issued its decision at the end of August 2022, more than two years after the appeal was filed.

In its decision, the Federal Circuit first held that the appeal was moot as to the expired patent. For the remaining patent, the dispute over infringement resolved to the question of whether the claims required actual operation or could instead be met by mere capability. On that point, the Court reversed the ALJ’s determination that the claims required actual operation. According to the Court, the present-tense claim language used (i.e., “a data obtaining section that demodulates and decodes”) was not significantly different from the sort that is usually interpreted to merely require capability (e.g., “for demodulating and decoding”). But the Court then held that the actual operation of the base stations was relevant to determining whether the accused mobile devices were capable of performing one of the particular claimed functions. The Court thus affirmed the finding of no infringement because INVT had failed to show that the base stations actually operated in a way that would allow the mobile devices to be capable of carrying out the claimed functionality.

Alexander Ott appeared for respondent ZTE at the Commission in this matter.




Argument Forfeit in Remand Notwithstanding Modified Claim Construction

In the second appeal arising from an inter partes review (IPR), the US Court of Appeals for the Federal Circuit found that its revised claim construction from the first appeal did not permit the patent challenger to raise a new argument in a remand proceeding at the Patent Trial & Appeal Board (Board) since the patent owner’s response in the original proceeding had sufficiently put the challenger on notice of the claim construction that was adopted in the first appeal. Wireless Protocol Innovations, Inc. v. TCT Mobile, Inc., Case No. 21-2112 (Fed. Cir. July 19, 2022) (Prost, Taranto, Chen, JJ.)

Wireless Protocol Innovations (WPI) owns a patent related to controlling data flow in a point-to-multipoint communications system. WPI filed a district court complaint in 2015 asserting the patent against TCT. In response, TCT filed IPR petitions challenging certain claims of the patent. The petition presented three grounds of unpatentability, one of which relied on a reference by Sen. TCT’s petition did not propose constructions for any claim terms and argued that Sen taught the “grant pending absent state” limitation of the challenged patent. WPI argued that Sen failed to disclose “transitioning” between the “grant pending absent” and “grant pending” states after a “subsequent bandwidth grant,” as required by the claims. In its reply, TCT maintained that Sen taught the limitation but never argued that Sen could be readily modified to include a “grant pending absent state.” The Board found all of the challenged claims to be unpatentable on two grounds, one of which relied on Sen. WPI appealed.

The Federal Circuit reversed the Board’s decision with respect to the first ground, vacated the Board’s decision relying on Sen because the Board applied a flawed claim construction of “grant pending absent state,” and remanded the IPR for the Board to reconsider in view of the Court’s new claim construction. The Court also specifically declined to “prejudge what arguments TCT has properly preserved or should now be permitted to advance or what determinations as to Sen, Rydnell, and admitted prior art are supported by the evidence.”

On remand, the Board allowed the parties to submit additional briefing and expert testimony limited to the issue of whether Sen described operating a consumer premises equipment (CPE) in a “grant pending absent state” as interpreted by the Federal Circuit. TCT maintained its argument that Sen disclosed a grant pending absent state and argued for the first time that, in the alternative, it would have been obvious to a person skilled in the art to modify Sen to meet the limitation. The Board issued a remand decision finding the challenged claims unpatentable. Again, WPI appealed.

The Federal Circuit found that TCT had failed to preserve its new claim construction and obviousness argument and that “failure to timely assert a right or raise an argument constitutes forfeiture.” The Court explained that TCT acknowledged that it understood, prior to its reply, that WPI sought to distinguish the claimed “grant pending absent state” from Sen because Sen involved some [...]

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Claim Construction Error Fuels Remand

The US Court of Appeals for the Federal Circuit vacated and remanded a district court’s noninfringement decision, finding that the district court improperly construed the asserted claims as requiring a dual-fuel system. Ethanol Boosting Sys., LLC v. Ford Motor Co., Case No. 21-1949 (Fed. Cir. July 18, 2022) (Moore, Hughes, JJ.) (Newman, J., dissenting) (non-precedential).

Ethanol Boosting Systems (EBS) filed suit against Ford for infringement of three patents relating to fuel management systems for spark ignition engines that include both a direct injection and a port fuel injection fueling system. During claim construction, Ford argued that the direct injection fuel system required “a fuel that contains an anti-knock agent . . . that is different from the fuel used for port injection.” The district court agreed with Ford, relying on the patents’ titles, figures and background sections. The district court noted that no figures depicted a single fuel engine, and that the specification repeatedly referenced direct injection of a non-gasoline fuel, such as ethanol, into a gasoline engine. The district court acknowledged that the specification made a singular reference to a 100% ethanol embodiment but found that this disclosure did not teach a single fuel engine and that it was in the context of a dual-fuel engine. In view of this construction, the parties stipulated to judgment of noninfringement. EBS appealed.

Reviewing claim construction de novo, the Federal Circuit found that nothing in the asserted claim language required the use of different fuels in the direct-injection and port-injection systems. The Court also found that the specification imposed no such requirement, relying on one embodiment that disclosed “100% of the fuel . . . come[s] from ethanol with a smaller fraction being port injected.” The Court rejected Ford’s citation to multiple passages requiring the use of two fuels, finding that those statements could not describe the invention as a whole because they did not describe all embodiments (namely, the aforementioned 100% ethanol embodiment). Ford also cited to an earlier Federal Circuit decision in which family members of the asserted patents were construed to require dual fuels. The Court disagreed, concluding that those patents had different specifications that did not disclose the 100% ethanol embodiment. The Court finally turned to the prosecution history of a different patent family member that has the same specification as the asserted patents. In that application’s prosecution history, the patent holder distinguished a prior art reference on the ground that it only used a single fuel type. The Court declined to import such a limitation from a statement made in that prosecution history because it did not reflect the claim language. The Court concluded that the district court erred in construing the claims to require a dual-fuel system and remanded the case for further proceedings.

Judge Newman issued a stinging dissent, taking the panel majority to task for departing from what she regarded as settled claim construction law. She agreed with the district court that the 100% ethanol example, considered in context, was “merely discussing how this [...]

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Claim Construction and Jurisdictional Discovery Are More Than Skin Deep

Referencing the use of antecedents from a “wherein” clause, the US Court of Appeals for the Federal Circuit reversed a district court’s claim construction and vacated its summary judgment ruling of indefiniteness that relied on that construction. University of Massachusetts v. L’Oréal S.A., Case No. 21-1969 (Fed. Cir. June 13, 2022) (Prost, Mayer, Taranto, JJ.) The Court also reversed the dismissal of a defendant based on personal jurisdiction, finding error in the district court’s refusal to permit jurisdictional discovery before granting a motion to dismiss on that basis.

This case involved two patents directed towards the topical treatment of skin with a composition of adenosine at a certain concentration, held by the University of Massachusetts (UMass). L’Oréal is French-based company (L’Oréal S.A.) and its US-based company (L’Oréal USA) were involved in the suit. L’Oréal S.A. moved to dismiss for lack of personal jurisdiction, and the district court granted the motion without an opportunity for UMass to conduct jurisdictional discovery. After the dismissal, the district court ruled on the construction of a claim limitation and subsequently wielded that construction to invalidate another limitation as indefinite. The district court entered a final judgment of invalidity on this basis. UMass appealed, challenging the claim construction and lack of jurisdictional discovery.

Construction Using “Wherein” Clause

The Federal Circuit explained that there are two steps in reviewing claim construction: determining whether there is a plain meaning of a disputed term and, as necessary, properly construing the term. After determining that there was no plain meaning of the claim term “concentration,” the Court addressed the construction of the phrase “topically applying to the skin a composition comprising a concentration of adenosine.” The Court found that the district court erred in its determination that the “concentration applied to the dermal cells” meant that the concentration must be measured by the concentration directly applied to the dermal cells beneath the skin, rather than the composition applied to the surface of the skin. The Patent Trial & Appeal Board had adopted the same interpretation in an inter partes review, and therefore “concentration applied to the dermal cells” required no further construction.

UMass challenged that the proper construction. The Federal Circuit, citing to support in the specification, stated that the concentration of adenosine found in the composition should be construed as that applied to the epidermis. Viewing the claim as a whole and use of antecedents, the Court explained that “applied” could relate to both direct and indirect application. The Court specifically noted the use of the word “the” in the wherein clause, and found that this read, for antecedent, as the concentration of the composition. In viewing the prosecution history, the Court determined there was no disavowal of indirect application, and the specification and dependent claims supported a read of the term “concentration” to mean the composition applied to the surface of the skin, rather than requiring testing of the concentration to which the dermal cells were actually exposed. The Court also noted that in the prosecution history, UMass [...]

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Can’t Hide Behind Minor Clerical Error to Escape Willful Infringement Verdict

The US Court of Appeals for the Federal Circuit affirmed a district court decision correcting a clerical error in a claim. Pavo Solutions LLC v. Kingston Technology Company, Inc., Case Nos. 21-1834 (Fed. Cir. June 3, 2022) (Lourie, Prost, Chen, JJ.)

The Pavo patent is generally directed to a “flash memory apparatus having a single body type rotary cover.” CATR Co., later substituted by Pavo, sued Kingston for infringing the Pavo patent. Supported by the patent specification and prosecution, the district court judicially corrected the claim language in its claim construction order to read “pivoting the cover with respect to the flash memory main body,” not “pivoting the case with respect to the flash memory main body” (change emphasized). Pavo’s damages expert, Bergman, presented a profit-based model of reasonable royalty damages, relying on an earlier settlement agreement between CATR and IPMedia to arrive at a profit split of 18.75%, amounting to 40 cents/unit for Kingston. The jury returned a verdict of willful infringement and awarded Pavo a 20% reasonable royalty.

Judicial Correction

The Federal Circuit addressed and affirmed three issues on appeal, the first being that the district court approximately corrected an obvious minor clerical error in the claims. Correction is appropriate “only if (1) the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims.” In deciding whether a particular correction is appropriate, a court “must consider how a potential correction would impact the scope of a claim and if the inventor is entitled to the resulting claim scope based on the written description of the patent.”

The Federal Circuit decided that the error was clear from the full context of the claim language, supported by the specification, and did not broaden the claim scope. Additionally, the correction was not subject to reasonable debate. Judicial correction “is merely giving to it the meaning which was intended by the applicant and understood by the examiner.” Kingston’s alternative correction would just reverse the order in which the structural components appear in the claim.

The prosecution history also did not suggest a different interpretation of the claim. The applicant and the examiner consistently characterized the claims as describing pivoting the case within the cover, which both the Patent Trial & Appeal Board (Board) and the court recognized. Each reviewing body understood the nature and scope of the invention consistent with correcting “case” to “cover.” Kingston argued that the Board denied the applicant’s request to correct the language, but the denial was on procedural grounds.

Willfulness

Second, the Federal Circuit determined that Kingston could form requisite intent to support a willful infringement verdict despite its arguments that it reasonably relied on not infringing the claims as originally written, and it could not anticipate that a court would later correct the claims. However, “reliance on an obvious minor clerical error in the claim language is not a defense to willful infringement.” By definition, [...]

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“Self-Similar” More Objective Than One Might Think

The US Court of Appeals for the Federal Circuit affirmed a Patent Trial & Appeal Board (Board) decision holding that the term “self-similar” was not indefinite and denying leave to file a sanctions motion. ClearOne, Inc. v. Shure Acquisition Holdings, Case No. 2021-1517 (Fed. Cir. June 1, 2022) (Moore, Newman, Hughes, JJ.)

Shure owns a patent relating to arrays of microphones and housings that can be fitted to a drop ceiling grid, providing “equivalent beamwidth performance at any given look angle.” During inter partes review, Shure moved to amend the claims to add a new claim reciting microphones “arranged in a self-similar configuration.” The Board granted that motion, holding that “self-similar” was not indefinite. The Board denied ClearOne’s motion for rehearing and separate motion for sanctions alleging a failure to disclose prior that Shure had asserted in a post-grant review initiated against one of ClearOne’s patents.

The Federal Circuit first reviewed the Board’s indefiniteness holding. Since “[d]efiniteness is a matter of claim construction,” the Court applied de novo review while reviewing underlying factual determinations for substantial evidence. The Court held that the intrinsic record alone supported the Board’s definiteness finding because it provided the scope of “self-similar” with reasonable certainty. The specification disclosed microphones arranged in a “self-similar or repeating configuration”; a “fractal, or self-similar, configuration surrounding a central microphone”; and arrangements in circular or other repeating shapes, such as “ovals, squares, rectangles, triangles, pentagons, or other polygons.” Thus, “self-similar,” when read in view of the specification, informed skilled artisans about the scope of the invention with reasonable certainty.

The Federal Circuit rejected ClearOne’s argument that “self-similar or fractal-like” and “self-similar or repeating” distinguished self-similar from other types of patterns, holding that in context, it was clear that the phrases equated, not juxtaposed, self-similar with those patterns. Reviewing the extrinsic evidence, the Court also rejected ClearOne’s arguments premised upon “a series of rhetorical questions to show [ClearOne’s] varying interpretations of the self-similar term.” The possibility of varying interpretations, the Court held, “does not render [a term] indefinite,” as otherwise nearly every term would be indefinite if susceptible to alternative plausible constructions.

The Federal Circuit also rejected ClearOne’s motion for leave to seek sanctions. The Board held that allowing the sanctions motion would lead to an inefficient proceeding because the sanctions motion raised the same arguments as the denied request for rehearing, a ruling that ClearOne conceded on appeal. The Board also found a lack of intent to breach a duty to disclose references. Without analysis and applying the abuse of discretion review standard, the Court found that these factual determinations sufficiently established that the Board did not abuse its discretion.




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