UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before the Honorable MaryJoan McNamara
`Administrative Law Judge
`
`
`
`In the Matter of
`
`CERTAIN LTE- AND 3G-COMPLIANT
`CELLULAR COMMUNICATIONS
`DEVICES
`
`
`
` Investigation No. 337-TA-1138
`
`
`COMPLAINANT INVT SPE LLC’S SUMMARY OF ITS PETITION FOR REVIEW OF
`THE FINAL INITIAL DETERMINATION
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`Complainant INVT seeks reversal of the ALJ’s Initial Determination (“ID”) on
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`essentiality, infringement, and the technical prong of domestic industry. For each Asserted
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`Patent, the parties agree: essentiality, infringement, and the technical prong rise and fall together.
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`As such, correcting the ALJ’s errors on essentiality will also correct the ALJ’s resultant errors on
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`infringement and the technical prong.
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`The most egregious legal error is the ALJ’s failure to address one of INVT’s two 3G
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`essentiality (and corresponding infringement) theories for the ’590 patent. INVT consistently
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`advanced two theories of 3G essentiality for the ’590 patent. Yet the ALJ addressed only one,
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`rejecting it based on a claim construction provided for the first time in the ID, for which INVT
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`seeks review and reversal. The ID is completely silent on INVT’s second essentiality theory.
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`INVT repeatedly raised, argued, proved, and briefed this second theory, which included pointing
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`out that under any claim construction the 3G coding matrix’s 5-bit repetition renders the ’590
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`patent standard essential and infringed. Failing to address INVT’s 3G argument violates both the
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`APA and the ITC’s own rules, which require that an ID address all “material” issues in dispute.
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`Beyond that, the ID is flawed because it improperly construes multiple claim terms across
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`the three asserted patents and applies an incorrect legal standard for “essentiality” in analyzing
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`the ’439 patent. Accordingly, INVT respectfully asks that the Commission find each of the three
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`asserted patents essential and infringed, and that the technical prong of domestic industry is
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`satisfied. The Commission may then remand for the ALJ to address any remaining issues.
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`I.
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`BACKGROUND
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`An eight-day evidentiary hearing was held on U.S. Patent Nos. 6,760,590 (the “’590
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`patent”), 7,206,587 (the “’587 patent”), and 7,848,439 (the “’439 patent”). After the evidentiary
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`hearing and post-hearing briefing, the ID found against INVT on infringement, generally finding one
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`element per patent not standard essential, and thus not infringed or practiced by the DI products. For
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`all except one of the issues raised herein, there is no underlying fact dispute. The parties agree on
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`what the 3G and LTE standards require, that the Accused Products comply with the standards, and on
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`how the Accused Products operate. ID at 30, 56. Therefore, when INVT’s ’590 patent 3G-essentiality
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`argument is actually considered, the claims of all three patents are properly construed, and the correct
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`legal standard for essentiality is applied, all asserted claims should be found essential and infringed.
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`II.
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`THE ’590 PATENT IS STANDARD ESSENTIAL AND INFRINGED
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`The ’590 patent improves resource allocation in cellular communications systems by
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`improving the transmission of channel quality information (“CQI”) from a mobile device (“UE”)
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`to a base station (“BS”). JX-0001. As claimed by the ’590 patent, before a CQI value is
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`transmitted to a BS, it is encoded (into a code word) by the UE. A code word is comprised of a
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`number of code word bits. JX-0001 at 19:59-64. The ’590 patent relates to that encoding process,
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`and improves the reliability of CQI transmissions by “assign[ing] a larger number of bits” in the
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`code word to an “upper digit” of the CQI value, as compared to “lower digits,” where the upper
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`digit has a greater impact on the received quality of the CQI measurement than lower digits. Id.
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`at cl. 3. In the ID, the ALJ essentially adopted a construction of the ’590 patent’s “assigns a
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`larger number of bits” claim term advanced by Respondents at the evidentiary hearing,
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`construing the term to require “mathematical sequestration” of the relevant code word bits, and
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`as excluding mathematical “blending.” See, e.g., ID at 42, 43, 57. On that basis alone, the ID
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`found no essentiality or infringement of the ’590 patent’s “coder” element. The ID found all
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`other elements of the asserted ’590 patent claims essential and infringed. ID at 65-66.
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`Yet throughout this investigation, INVT argued that asserted claims 3 and 4 of the ’590
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`patent are essential to the 3G standard and infringed under any claim construction advanced by
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`any party, based specifically on the 3G standard’s 5-bit repetition code applied to the most
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`significant bit (“MSB”), or the “upper digit.” See, e.g., INVT Pre-Hearing Br. at 27; Tr. (INVT
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`Opening) at 21:1-20; Tr. (Nettleton) at 561:24-564:7; Tr. (Wicker Cross) at 1589:20-1591:18;
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`Tr. (INVT Close) at 2591:14-2592:3; INVT Post-Hearing Br. at 57-58. This repetition code is
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`highlighted in Table 14 from the 3G standard. CX-0058-0068
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`(highlighting added as shown in CDX-0003C-0078).
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`The ALJ simply ignored these arguments—the 3G
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`standard’s 5-bit repetition code is not addressed anywhere in
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`the ID. By not addressing INVT’s argument in the ID, the ALJ
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`committed legal error, as both the Commission’s Rules and
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`the APA require an ID to explain the reasons or bases for the
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`ALJ’s conclusions on all “material” issues. 19 C.F.R. § 210.42(d) and 5 U.S.C. § 557(c). A
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`primary infringement theory is undoubtedly a material issue.
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`To that end, had the ID addressed INVT’s 3G repetition code argument, even under its
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`incorrect claim construction requiring “mathematical sequestration,” the undisputed facts prove
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`that the asserted claims of the ’590 patent are essential to the 3G standard and thus, infringed.
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`Specifically, by including the above highlighted 5-bit repetition code in the 3G coding
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`matrix, which applies all 1s to the “upper digit” (or “MSB”) and all 0s to the rest of the “lower”
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`digits, the 3G standard ensures that the claimed “upper digit” is mathematically sequestered from
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`the lower digits, as required by the ALJ’s construction. This is apparent because, in the five rows
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`that comprise the repetition code, only the column Mi,4, which corresponds to the “upper digit” or
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`MSB, has coefficients of 1. Thus, for the last five rows, only the “upper digit” impacts the value
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`of the output code word bit. The remaining digits, all multiplied by coefficients of 0, have no
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`impact on the value of the output code word bits. Both INVT’s and Respondents’ technical
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`experts agreed on this point. Tr. (Nettleton) at 561:24-563:6; Tr. (Wicker Cross) at 1590:11-19.
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`Indeed, the ALJ herself seems to agree. In her analysis of block diagonal codes, the ALJ
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`concludes that using coefficients of 0 to pad coding matrices does not result in mathematical
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`blending. ID at 45. Similarly, the 3G coding matrix places all 0s before the column that applies
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`all 1s to the MSB. Because only the “upper digit” (the MSB, to which the all 1s column is
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`applied) has any impact on the value of these final five code word bits, the “upper digit” is
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`isolated, or sequestered in these final five rows. Thus, even applying the ALJ’s own analysis,
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`claims 3 and 4 of the ’590 patent are essential to the 3G standard and infringed.
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`Even more, and although claims 3 and 4 of the ’590 patent are essential to the 3G
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`standard even under the ALJ’s construction of the “assigns a larger number of bits” claim term,
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`that construction is legally incorrect because it improperly imports narrowing limitations based
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`on embodiment 6 from the ’590 patent’s specification. Under the proper construction, claims 3
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`and 4 are essential to both the 3G and LTE standards.
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`To that end, the ALJ’s construction is not supported by either the plain language of the
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`claims or by the ’590 patent’s specification or file history. To the contrary, the ’590 patent
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`explains that in encoding the upper and lower digits of the CQI, “as long as the number of bits of
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`the code word corresponding to the upper digit value is greater than the number of bits of the
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`code word corresponding to the lower digit value, there are no particular limitations on these
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`numbers of bits.” JX-0001 at 21:35-41. Thus, and as explained more fully in INVT’s petition,
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`claims 3 and 4 of the ’590 patent are not limited to any particular encoding methods, e.g. not
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`limited to a method that employs “mathematical sequestration,” so long as more bits are assigned
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`to the upper digit. JX-0001 at cl. 3; 21:38-41.
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`Under the proper construction, which merely requires that more code word bits
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`correspond to (be assigned to) the upper digit than to the lower digit, the asserted ’590 claims are
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`essential to both 3G and LTE, and infringed. An input CQI bit only corresponds to an output
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`code word bit if the input bit has the ability to impact the value of that code word bit. See Tr.
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`(Nettleton) at 558:3-15. Put another way, if a CQI bit is irrelevant to the value of a resulting code
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`word bit, that CQI bit is not assigned to that code word bit. Id. In 3G and LTE, whether a CQI bit
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`has any impact on the ultimate value of a code word bit is solely determined by the value of the
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`coefficients applied to the CQI bit in the coding matrix—whether the coefficient is a 0 or a 1.
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`More specifically, a CQI bit is only assigned to a code word bit when the CQI bit is
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`multiplied by a “1” in the coding matrix row corresponding to the given code word bit.
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`Conversely, a CQI bit is not assigned to a given code word bit when the CQI bit is multiplied by
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`a coefficient of “0” because if the CQI bit is multiplied by 0, the CQI bit has no impact on the
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`resulting code word bit. Tr. (Nettleton) at 567:14-19; Tr. (Wicker) at 1590:11-19.
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`For example, in the 3G matrix shown above, the MSB (a4) of the CQI value is assigned to
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`all 20 bits of the resulting code word because a4 is multiplied by a “1” in every row of Table 14.
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`Therefore, the value of a4 is reflected in all 20 code word bits and all 20 code word bits
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`correspond to a4. While the LTE standard’s basis sequences are visually different from 3G’s, an
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`identical analysis applies to the LTE standard, which encodes the CQI using a set of basis
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`sequences shown in Table 5.2.3.3-1. CX-0065-0032; Tr. (Nettleton) 579:10-580:5. The CQI bits
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`are multiplied by coefficients in the same manner, and the MSB (the “upper digit”) is likewise
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`applied to a basis sequence of all 1’s. CX-0065-0032; Tr. (Nettleton) 579:13-580:2. Thus, all 20
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`code word bits correspond to the MSB as the MSB has the potential to impact the final value of
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`all 20 code word bits, and the MSB (the “upper digit”) is always assigned to 20 code word bits.
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`On the other hand, like in 3G, the lower digits (all other CQI bits) only correspond to
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`between 8 and 12 code word bits. CX-0065-0032; Tr. (Nettleton) 579:13-580:19. This is true
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`because the basis sequences for the lower digits have between 8 and 12 “1s,” and between 8 and
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`12 “0s.” Id. Therefore, the LTE standard also requires a coder that encodes the information such
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`that the upper digit is assigned to a larger number of bits than the lower digit—20 bits for the
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`upper digit and between 8 to 12 bits for all other lower digits.
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`Properly construed, claims 3 and 4 of the ’590 patent are essential to both 3G and LTE.
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`Thus, the claims are infringed by the Accused Products and the DI technical prong is satisfied.
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`III. THE ’587 PATENT IS STANDARD ESSENTIAL AND INFRINGED
`The ’587 patent is a continuation of the ’590 patent. JX-0002. Although the ’587 and
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`’590 patents share the same specification, asserted claim 4 of the ’587 patent differs from the
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`asserted claims of the ’590 patent. Specifically, while the asserted claims of the ’590 patent
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`require that the “upper digit” is “assigned” more bits than lower digits, the ’587 requires that the
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`“most significant bit” (MSB) is “less susceptible to errors” than other bits. JX-0002 at cl. 4.
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`The ID, however, narrowed the claims of the ’587 patent by adopting an improperly
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`narrow claim construction for asserted claim 4 that the claimed “coding device” to mean-plus-
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`function requirements under 35 U.S.C. § 112, ¶ 6. The ALJ’s holding is contrary to the
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`presumption that the claim, which does not use the term “means,” is not subject to means plus
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`function requirements, and was reached only by applying an incorrect legal test.
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`The test to determine if means plus function requirements apply to a claim that does not
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`use the word “means” is a two-step process: first, one must first determine whether the claim
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`element itself connotes structure, or whether it is a nonce word that essentially acts as a
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`substitute for “means.” Skky, Inc. v. MindGeek s.a.r.l., 859 F.3d 1014, 1019 (Fed. Cir. 2017).
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`Second, only if structure is not connoted, one considers what the function of the claimed element
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`is, and whether the claim contains sufficient specificity in terms of structure. Id.
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`The ALJ’s Markman order, however, skips the first step of determining whether the
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`“coding device” element itself is readily understood by a person of ordinary skill in the art as
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`connoting structure. See Order No. 40 at 23. When the first question is considered, § 112, ¶ 6
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`does not apply. Rather, as explained by Dr. Nettleton, the “coding device” term is understood by
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`one of skill in the art as connoting structure, and should simply be construed as “hardware and/or
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`software that encodes the information to obtain a code word.” CXM-0002 (Nettleton Decl.) at
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`¶¶ 74, 85. Dr. Nettleton’s opinion is confirmed by the intrinsic record, as well as
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`contemporaneous technical dictionaries and text books. CXM-0004 at 379; CXM-0003 at 4; see
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`also Order No. 40 at 15 (adopting construction with similar format for “measuring device”).
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`After correcting the ALJ’s construction, the Commission should then affirm the ID’s
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`provisional ruling that “in the event that the 112 ¶ 6 claim construction of ‘a coding device . . .’
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`is rejected on review . . . INVT would have proven by a preponderance of the evidence that this
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`limitation is essential to the 3G and LTE standards.”1
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`Alternatively, even if claim 4’s “coding device” were subject to means-plus-function
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`requirements—which it is not—claim 4 is still essential to the 3G standard and infringed. As the
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`ID correctly recognizes, based on the 5-bit repetition code, the 3G standard provides better
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`protection for the MSB, rendering the MSB less susceptible to errors in a propagation path. ID at
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`60-61. Moreover, as explained more fully in INVT’s petition, the 3G standard contains structure
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`that is the same as, or at least equivalent to, the corresponding structure identified by the ID and
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`Order No. 40. Namely, Figure 15 as described with respect to Embodiment 6 of the ’587 patent.
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`1 The Commission should not adopt the ID’s subsequent footnote that, in such a scenario, claim 4
`is “likely” invalid for lack of written description. ID at 103 n.53. The primary case the ID relies
`upon, LizardTech, is inapposite and has been held to not apply to apparatus claims with a format
`similar to claim 4 of the ’587 patent. See Research Corp. Techs. v. Microsoft Corp., 627 F.3d
`859, 873 (Fed. Cir. 2010). Moreover, the evidence submitted at the Markman stage established
`that a POSITA would have understood the term “coding device” to connote definite structure.
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`Specifically, the ID correctly recognizes that a “block diagonal code” is equivalent
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`structure to that shown in Figure 15. ID at 45; see also Tr. (Wicker Cross) at 1612:24-1614:16.
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`In fact, Respondents’ own expert admitted that the 3G coding matrix can be thought of as
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`nothing more than a 15-bit Reed-Muller code with a five-bit repetition code tacked on to the end.
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`Tr. (Wicker Cross) at 1616:7-1617:5. This means the 3G coding matrix operates in the same way
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`as the two coding sections of the block diagonal code, where the 3G coding matrix’s repetition
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`code enhances the protection afforded to the MSB in the exact same way that the diagonal block
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`code provides enhanced protection for the MSB—by mathematically sequestering the MSB into
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`a set of code word bits than none of the less significant CQI bits have any impact on.
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`Even under the ID’s incorrect means-plus-function construction, claim 4 of the ’587
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`patent is essential to the 3G standard and infringed by the Accused Products.
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`IV.
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`THE ’439 PATENT IS STANDARD ESSENTIAL AND INFRINGED
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`The ’439 patent claims improvements to then-existing adaptive modulation and coding
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`(“AMC”). Ex. JX-0003 at 1:7-14, 2:54-60, 5:32-45. At their core, the asserted claims teach a UE
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`that measures channel quality, determines modulation and coding parameters based on that
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`measurement, transmits those parameters to a BS, receives data back from the BS, and
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`demodulates and decodes that data using the very same parameters it previously determined. JX-
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`0003 at cl. 1. The novel aspect of the ’439 patent is that the modulation and coding parameters
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`are selected on a “per subband group” basis, based on pre-stored patterns for selecting the
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`subbands that comprise a subband group. Id. at 13:21-27. As discussed in the ID, the ’439 patent
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`discloses multiple ways of creating subband groups ranging from “combining neighboring
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`subbands,” to combining every fourth subband, to “combining all the subbands” in the frequency
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`bandwidth into a single subband group. See, e.g., ID at 27-30 (citing JX-0003 at Figs. 8-10).
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`Respondents previously moved for summary determination of non-infringement of the
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`’439 patent, arguing that the UE must be the “final” arbiter of the modulation and coding
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`parameters selected. Order No. 52 at 2. In other words, that the BS cannot make its own
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`independent selection of parameters, even if that selection is based on the input received from the
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`UE and results in the very same parameters being used. The ALJ denied Respondents’ motion,
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`holding that the asserted claims can be infringed so long as the “very” parameters used by the
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`UE to decode and demodulate are the same as the UE originally determined and transmitted to
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`the BS. Id. at 3. In reaching that conclusion, the ALJ noted that the claims of the ’439 patent are
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`“silent” as to the operation of the base station; the claims focus solely on the UE. Id. at 3, n.3.
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`The ID, however, ultimately found the asserted claims were not essential to the LTE
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`standard or infringed by the Accused Products, because the LTE standard allegedly does not
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`require that the “very” parameters be selected by the BS. ID at 107 (“it does not appear likely,
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`much less required, for the base station to choose the ‘very parameters’ initially decided by the
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`UE.”). In reaching this conclusion, which relates to the “receiving” and “data obtaining” claim
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`elements, the ALJ improperly focused on whether the ’439 claims are “capability” claims, and
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`whether the LTE standard requires that the very same parameters must always be used. Id. at
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`107-08. Essentiality, however, does not require that a feature always be used but instead that the
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`feature must be present. Here, the LTE standard states that a BS “may” take into account the
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`parameters reported by the UE. CX-0072-0057; Tr. (Vojcic) 826:6-22. Further, even Respondents’
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`technical expert agreed that when the BS does take those reported parameters into account (as
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`the standard says it “may”), and selects the very parameters that the UE transmitted, the UE must
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`receive, demodulate, and decode using those very parameters. Tr. (Acampora) 1918:1-1919:14. In
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`other words, even if the BS does not always have to select the very parameters determined by the
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`UE, because the LTE standard dictates that the BS “may” take those parameters into account and
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`thus ultimately decide to use them, the LTE standard requires that the UE must, always, have the
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`functionality to demodulate and decode using those very parameters. The “receiving” and “data
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`obtaining” claim elements, which only relate to the UE, are thus standard essential and infringed.
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`The ID’s contrary conclusion is legally erroneous.2
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`Finally, the ALJ committed legal error by finding that the ’439 patent requires that
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`demodulating and decoding occur “differently for every subband group.” ID at 124. This holding
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`is directly contrary to the ID’s prior observation that the ’439 patent expressly teaches the use of
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`a subband group that applies to the entire frequency spectrum. ID at 27-29 (citing Fig. 10). Even
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`more, the ALJ previously construed “per subband group” to mean simply “each subband group,”
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`a construction that in no way requires any differences amongst groups. Order No. 40. Correcting
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`this last error by the ALJ results in the asserted ’439 patent claims being essential and infringed.
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`V.
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`THE TECHNICAL PRONG OF DOMESTIC INDUSTRY IS SATISFIED
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`The parties and staff agree: the technical prong of the domestic industry requirement rises
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`and falls with essentiality and infringement by the Accused Products. As such, the Commission
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`should also reverse the ALJ’s holding on the domestic industry technical prong.
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`*
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`*
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`*
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`For the above stated reasons, INVT respectfully requests the Commission find each of the
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`three asserted patents essential and infringed, and that the DI technical prong is satisfied. Then,
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`the Commission may remand for the ALJ to address any remaining issues.
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`2 The incorrect legal standard applied in the ID also caused a second legal error—that INVT
`failed to prove the “very parameters” are used because INVT did not present any base station
`code. ID at 107, 128. As the ALJ properly recognized when denying Respondents’ summary
`determination motion, the asserted claims of the ’439 patent are drawn only to the UE, and are
`“silent” on the operation of the BS. As such, this holding is also legally erroneous.
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`Respectfully submitted,
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`/s/ Bryan J. Vogel
`Bryan J. Vogel
`Derrick J. Carman
`ROBINS KAPLAN LLP
`399 Park Avenue
`Suite 3600
`New York, NY 10022
`Telephone: (212) 980-7400
`Facsimile: (212) 980-7499
`RK_INVT_ITC@RobinsKaplan.com
`
`Christopher A. Seidl
`John K. Harting
`ROBINS KAPLAN LLP
`800 LaSalle Avenue
`Suite 2800
`Minneapolis, MN 55402
`Telephone: (612) 349-8500
`Facsimile: (612) 339-4181
`
`Li Zhu
`ROBINS KAPLAN LLP
`2440 W. El Camino Real
`Suite 100
`Mountain View, CA 94040
`Telephone: (650) 784-4040
`Facsimile: (650) 784-4041
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`Counsel for INVT SPE LLC
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`Dated: March 2, 2020
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`CERTIFICATE OF SERVICE
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`I, Bernard B. Pound, hereby certify that on March 2, 2020, true and correct copies of
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`COMPLAINANT INVT SPE LLC’S SUMMARY OF ITS PETITION FOR REVIEW OF
`THE FINAL INITIAL DETERMINATION were served on the parties listed below:
`The Honorable Lisa R. Barton
`☒ Via EDIS
`Secretary to the Commission
`☒ Via Hand Delivery (2 copies)
`U.S. INTERNATIONAL TRADE COMMISSION
`☐ Via Federal Express
`500 E Street, SW
`☐ Via First Class Mail
`Washington, D.C. 20436
`☐ Via Electronic Mail
`☐ Via EDIS
`☒ Via Hand Delivery (2 copies)
`☐ Via Federal Express
`☐ Via First Class Mail
`☒ Via Electronic Mail
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`☐ Via EDIS
`☐ Via Hand Delivery
`☐ Via Federal Express
`☐ Via First Class Mail
`☒ Via Electronic Mail
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`☐ Via EDIS
`☐ Via Hand Delivery
`☐ Via Federal Express
`☐ Via First Class Mail
`☒ Via Electronic Mail
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`☐ Via EDIS
`☐ Via Hand Delivery
`☐ Via Federal Express
`☐ Via First Class Mail
`☒ Via Electronic Mail
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`☐ Via EDIS
`☐ Via Hand Delivery
`☐ Via Federal Express
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`☒ Via Electronic Mail
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`The Honorable MaryJoan McNamara
`Administrative Law Judge
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Room 317
`Washington, D.C. 20436
`Jae.Lee@usitc.gov, Michael.Buckler@usitc.gov
`Mr. Reginald Lucas, Esq., Investigative Attorney
`Office of Unfair Import Investigations
`U.S. INTERNATIONAL TRADE COMMISSION
`500 E Street, SW, Suite 401
`Washington, D.C. 20436
`Reginald.Lucas@usitc.gov
`For Respondent Apple Inc.
`Robert A. Appleby, P.C.
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, NY 10022
`Apple-Inventergy@kirkland.com
`For Respondents HTC Corp. and HTC America, Inc.
`Stephen S. Korniczky
`SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
`12275 El Camino Real, Suite 200
`San Diego, California 92130
`LegalTm-HTC-INVT-ITC@sheppardmullin.com
`For Respondents ZTE Corp. and ZTE (USA), Inc.
`Jay H. Reiziss
`MCDERMOTT WILL & EMERY LLP
`500 North Capitol Street, NW
`Washington, D.C. 20001
`ZTEINVT@mwe.com
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`Dated: March 2, 2020
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` /s/ Bernard B. Pound
`Bernard B. Pound
`ROBINS KAPLAN LLP
`399 Park Avenue, Suite 3600
`New York, NY 10022
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