throbber
PUBLIC VERSION
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`
`Washington, D.C.
`
`In the Matter of
`
`Investigation N0. 337-TA-710
`
`
`
`
`CERTAIN PERSONAL DATA AND
`
`MOBILE COMMUNICATIONS DEVICES
`
`AND RELATED SOFTWARE
`
`COMMISSION OPINION
`
`

`
`PUBLIC VERSION
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ............................................................................................................... .. 3
`
`II. VIOLATION OF SECTION 337 ....................................................................................... .. 7
`
`A. The ’263 Patent ................................................................................................................. .. 7
`
`1.
`
`2
`
`“Realtime API” ............................................................................................................. .. 8
`
`“Device Handler” ........................................................................................................ .. 12
`
`3. A Realtime API “Coupled Between” Two Subsystems ............................................. .. 15
`4.
`Inconsistency Between the ID’s Infringement and Invalidity Analyses ..................... .. 16
`5
`“Adapter Subsystem” .................................................................................................. .. 22
`6
`Summary of Findings for the ’263 Patent ................................................................... .. 22
`
`B.
`
`The ’647 Patent ............................................................................................................... .. 23
`
`1.
`
`“Linking Actions to the Detected Structures” (claim 1) and
`“Linking at Least One Action to the Detected Structure” (claim 15) .................... .. 23
`The Ordering of Claim 15’s Steps .............................................................................. .. 30
`2.
`Linking Structures to Multiple Actions in the Accused Products ............................... .. 31
`3.
`Gl0bal~Tec/2 Appliances, Inc. V. SEB S.A., No. 10-6 (U.S. May 31, 2011) ................ .. 31
`4.
`5. HTC’s Motion for Summary Determination of Intervening Rights ........................... .. 32
`6.
`Summary of Findings for the ’647 Patent ................................................................... .. 34
`
`C. The 721 Patent ............................................................................................................... .. 35
`
`1.
`2.
`3.
`4.
`
`“Processing Means” .................................................................................................... .. 35
`“Dynamic Binding” .................................................................................................... .. 46
`“Dynamic Binding” Under the ALJ’s Construction ................................................... .. 50
`Summary of Findings for the ’72l Patent ................................................................... .. 51
`
`D. The ’983 Patent ............................................................................................................... .. 51
`
`1
`2.
`3.
`4
`5
`
`“Loading” .................................................................................................................... .. 52
`“Selectively Load Required Object-Oriented Methods” ............................................ .. 55
`“Executable Program Memory” Limitations .............................................................. .. 63
`The ALJ’s Striking a Portion of HTC’s Expert Report .............................................. .. 65
`Summary of Findings for the ’983 Patent ................................................................... .. 66
`
`III. REMEDY, THE PUBLIC INTEREST, AND BONDING ............................................ .. 66
`
`A. Remedy and the Public Interest ...................................................................................... .. 67
`1.
`Limited Exclusion Order ............................................................................................. .. 67
`
`2.
`
`Cease and Desist Order ............................................................................................... .. 84
`
`B. Bonding ........................................................................................................................... .. 84
`
`IV. CONCLUSION ................................................................................................................. .. 86
`
`-2-
`
`

`
`1.
`
`INTRODUCTION
`
`PUBLIC VERSION
`
`The Commission instituted this investigation on February 24, 2010, based on a complaint
`
`filed by Apple Inc., and its subsidiary NeXT Software, Inc., both of Cupertino, California
`
`(collectively, “Apple”), alleging a violation of section 337 of the Tariff Act of 1930 as amended,
`
`19 U.S.C. § 1337, in the importation, sale for importation, or sale within the United States after
`
`importation of certain personal data and mobile communications devices and related software by
`
`reason of infringement of certain claims of ten patents.
`
`75 Fed. Reg. 17434. Respondents are
`
`High Tech Computer Corp. of Taoyuan City, Taiwan and its United States subsidiaries HTC
`
`America Inc. of Bellevue, Washington, and Exedia, Inc. of Houston, Texas (collectively,
`
`“HTC”).1 The accused products are certain HTCJ smartphones running the Android operating
`
`system.
`
`On July 15, 2011, the ALJ issued his final Initial Determination (“ID”). By that time, the
`
`investigation had been narrowed to certain claims of four patents:
`
`claims 1, 2, 24, and 29 of U.S.
`
`Patent No. 6,343,263 (“the ’263 patent”); claims 1, 3, 8, 15, and 19 of U.S. Patent No. 5,946,647
`
`(“the ’647 patent”); claims 1, 5, and 6 of U.S. Patent No. 5,481,721 (“the ’72l patent”); and claims
`
`1 and 7 of U.S. Patent No. 6,275,983 (“the ’983 patent”). The four patents are unrelated. The
`
`1 Five of the ten patents asserted by Apple in this investigation were also asserted by Apple
`against Nokia Corp. of Espoo. Finland and Nokia Inc. of White Plains, New York (collectively
`“Nokia”) in Investigation No. 337-TA—704. On motion by the Commission investigative attorney
`in the 704 investigation and by the respondents in both investigations, the Chief Administrative
`Law Judge transferred Apple’s assertion of overlapping patents against Nokia from the 704
`investigation into the 710 investigation. See Certain Mobile Communications and Computer
`Devices and Components Thereofi Inv. No. 337-TA—704, Order No. 5 (Apr. 26, 2010).
`Subsequently, Apple and Nokia entered a settlement agreement, and on July 21, 201 l, the
`Commission determined not to review the presiding Administrative Law Judge’s (“ALJ”)
`termination of the investigation as to Nokia on the basis of settlement.
`
`

`
`PUBLIC VERSION
`
`’263 patent discloses a telecommunications interface for real—time data processing. The ’647
`
`patent discloses automatically highlighting structures (e. g. , telephone numbers, email addresses,
`
`and names) in a document such as an email message or word-processing file to enable certain
`
`linked actions (e. g. , calling that telephone number, adding the address to an electronic telephone
`
`book, or composing an email to that email address). The ’72l and ’983 patents both involve
`
`aspects of obj ect-oriented programming.
`
`Based substantially on certain claim constructions, the ID found that none of the asserted
`
`patent claims were invalid. With respect to infringement and domestic industry, the ID found as
`
`follows:
`
`.1
`
`-
`-‘.9
`2:22:23 )n 0n finséizws £3; tize 38
`
`
`
`’263 claims 1, 2, 24, 29
`’647 claims 1, 8, 15, 19
`
`’647 claim 3
`
`Unn claims 1, 5, 6
`
`’983 claims 1, 7
`
`Yes
`
`No
`
`No
`
`Yes
`
`Yes
`
`No
`
`i
`
`Accordingly, the ID found a violation of section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337,
`
`with respect to the asserted claims of the ’263 patent and all but one of the asserted claims of the
`
`’647 patent? The ALJ recommended the issuance of a limited exclusion order, that zero bond be
`
`2 The ALJ found that HTC did not infringe claim 3 of the ’647 patent, and Apple did not
`petition for review of the ALJ’s noninfringement finding for that claim. Accordingly, there can
`be no violation of section 337 as to that claim.
`
`

`
`PUBLIC VERSION
`
`posted during the Presidential review period, and that no cease and desist order issue.
`
`HTC, Apple, and the Commission investigative attorney (“IA”) each petitioned for review
`
`of the ID, and each filed responses to the others’ petitions. On September 15, 2011, the
`
`Commission determined to review several issues regarding each of the four patents asserted in this
`
`investigation. 76 Fed. Reg. 58,537 (Sept. 21, 2011).
`
`In response, the parties filed opening and
`
`reply briefs.3 In addition, three non-parties filed comments on remedy, the public interest, and
`
`bonding: Google Inc. (“Google”); T—Mobile USA, Inc. (“T—Mobile”); and The Association for
`
`Competitive Technology (“ACT”).4
`
`3 Apple filed separate briefs on the issues under review and on remedy, the public interest,
`and bonding. HTC’s opening brief consolidated these matters, but it filed separate replies.
`Compl’ts Apple Inc. and NeXT Software, Inc.’s Written Submission in Response to the
`Commission’s Determination to Rev. in Part a Final ID Finding a Violation of Section 337 (Oct. 6,
`2011) (“Apple BL”); Compl’ts Apple Inc. and NeXT Software, Inc.’s Written Submission on
`Remedy, the Public Interest, and Bonding (Oct. 6, 2011”) (“Apple Remedy Br.”); The HTC
`Resp’ts’ Opening Br. on ComIn’n Rev. (Oct. 6, 2011) (“HTC Br.”); Office of Unfair Import
`Investigations’ Resp. to Questions Posed in the Comm’n’s Notice of Sept. 15, 2011, and Briefing
`on the Issues of Remedy, the Public Interest, and Bonding (Oct. 6, 2011) (“IA Br.”); Compl’ts
`Apple Inc. and NeXT Software, Inc.’s Reply to Respondents and OUII’s Respective Written
`Submissions in Resp. to the Notice of Comm’n Determination to Rev. in Part a Final Initial
`Determination Finding a Violation of Section 337 (Oct. 17, 2011) (“Apple Reply Br.”); Compl’ts
`Apple Inc. and NeXT Software, Inc.’s Reply on Remedy, the Public Interest, and Bonding (Oct.
`17, 2011”) (“Apple Remedy Reply Br.”); The HTC Resp’ts’ Reply to the Briefs of Compl’t and
`the Office of Unfair Import Investigations on the Issues Under Review (Oct. 17, 2011) (“HTC
`Reply Biz”); The HTC Resp’ts’ Reply to the Briefs of Cornpl’t and the Office of Unfair Import
`Investigations on Remedy, Bonding, and the Public Interest (Oct. 17, 2011) (“HTC Remedy Reply
`Br.”); Office of Unfair Import Investigations’ Reply to Apple’s and HTC’s Initial Responses to the
`Cornm’n’s Notice of Sept. 15, 2011, and Briefing on Remedy, the Public Interest, and Bonding
`(Oct. 17, 2011) (“IA Reply Br.”). HTC’s briefing totaled more than 300 pages of argument,
`App1e’s nearly as much, all exclusive of supporting materials.
`
`4 Submission of Google Inc. in Resp. to the Comm’n’s Sept. 21, 2011 Request for Written
`Submissions on the Issues of Remedy, the Public Interest and Bonding in Inv. No. 337—TA—7l0
`(Oct. 6, 2011) (“Google Remedy BL”); Third-Party T—Mobile USA, Inc.’s Statement Regarding
`the Public Interest (Oct. 6, 2011) (“T-Mobile Remedy Br.”); Reply Comments of the Association
`for Competitive Technology in Resp. to the Comm’n’s Sept. 21, 2011 Request for Written
`[Footnote continued on the next page]
`
`-5-
`
`

`
`PUBLIC VERSION
`
`On review, we have determined to affirm the ALJ’s finding of a violation of section 337 as
`
`to claims 1 and 8 of the ’647 patent. We affirm the ALJ’s finding of no violation of section 337 as
`
`to the ’72l patent and the ’983 patent. We reverse the ALJ’s finding of a violation of section 337
`
`as to the ’263 patent and claims l5 and 19 of the ’647 patent. Our conclusions bearing on the
`
`violation of section 337 are as follows:
`
`"fies Ce§z“z::2%ss§=:s;2’s Beierzrairzaéiezzs on Review
`
`
`
`'253 claims 1, 2,
`24’ 29
`
`No
`
`No
`
`Only under Apple's
`-
`construction of
`"realtime APl”
`
`’647 claims 1, 8
`
`Yes
`
`Yes
`
`’647 claims 15, 19
`
`No position
`
`Yes
`
`’7Z1 claims 1, 5, 6
`
`No
`
`Yes
`
`No
`
`Yes
`
`Yes
`
`'98?» claims 1, 7
`
`No
`
`No
`
`Only under Apple's
`
`construction of
`
`”selectively load" to
`
`include class loading
`
`[Footnote continuedfiom the previous page]
`Submissions on the Issues of Remedy, the Public Interest and Bonding (Oct. 26, 2011) (“ACT
`Remedy Br.”). On October 18, 2011, the Commission granted ACT’s motion for an extension of
`time to file its comments. Thus, ACT’s comments were filed closer in time to the parties’ reply
`comments, and ACT referred to its comments as a “reply.” Google and T—Mobile did not file
`reply comments. We hereby grant ACT’s subsequent motion for leave to file a corrected version
`of its comments to fix certain typographical errors.
`
`

`
`PUBLIC VERSION
`
`The Commission has determined that the appropriate remedy is a limited exclusion order,
`
`and that the exclusion of articles subject to the order shall commence on April 19, 2012.
`
`In
`
`addition, the exclusion order contains an exemption permitting HTC to import into the United
`
`States until December 19, 2013 refurbished handsets to be provided to consumers as replacements
`
`under warranty or an insurance contract. The Commission has determined that Apple has not
`
`demonstrated that a bond is appropriate during the Presidential review period, and has determined
`
`not to issue a cease and desist order.
`
`II.
`
`VIOLATION OF SECTION 337
`
`A.
`
`The ’263 Patent
`
`Independent claim 1 and its dependent claims 2, 24, and 29, have been asserted from this
`
`patent, which is entitled “Real—time Signal Processing System for Serially Transmitted Data.”
`
`The ’263 patent issued on January 29, 2002, and discloses a telecommunications interface for
`
`real-time data processing. Although the patent’s written description (including the patent claims)
`
`uses the terms “real-time” or “realtime” nearly 200 times, the parties disputed its meaning before
`
`the ALJ. The ALJ construed “realtime” as “within a defined upper bounded time limit.” ID at
`
`32. The construction ofthat term is no longer in dispute.
`
`5
`
`The Commission granted review on
`
`5 The patent equates realtime processing to processing of “isochrononous streams of data.”
`Col. 2 lines 26-36, 42-50. The patent references the definition of isochronous data from U.S.
`Patent No. 5,515,373 col. 11 lines 43-51, which shares the same inventors, and which the ’263
`patent disclosure incorporates by reference at col. 3 lines 30-37. The ’263 patent distinguishes
`“isochronous data handling” from “a burst mode.” Col. 2 lines 26-33. One dictionary defines
`“burst mode” as a “mode of transmission by which a system can send a burst of data at higher
`speed for some period of time.” IEEE 100: The Authoritative Dictionary of IEEE Standards
`Terms 128 (7th ed. 2000). Because “realtime” is not disputed before the Commission, we provide
`this discussion for context regarding the now-agreed—upon construction’s requirement of a
`“defined upper bounded time limit.”
`
`

`
`PUBLIC VERSION
`
`five issues. See Notice, 76 Fed. Reg. 58537, -38 (Sept. 21, 2011). These issues include two
`
`claim constructions (“realtime API” and “device handler”), as well as certain questions of
`
`infringement, invalidity, and domestic industry independent of those constructions.
`
`1.
`
`“Realtime API”
`
`The ALJ construed the term “realtime API” in claim 1 as an “API that allows realtime
`
`interaction between two or more subsystems.” ID at 41.
`
`In its petition for review, HTC
`
`contended that the ALJ’s construction is erroneous, and that under a proper construction, neither
`
`its products nor App1e’s domestic industry products practice the asserted patent claims. The
`
`Commission granted review. See Notice, 76 Fed. Reg. 58537, -38 (Sept. 21, 2011) (Issue No. 1).
`
`a)
`
`Claim Construction
`
`Asserted claim 1 includes “at least one realtime application program interface (API)
`
`coupled between the subsystem and the realtime signal processing subsystem to allow the
`9
`subsystem to interoperate with said realtime services.’ The claim construction issue regarding
`
`this “realtime API” boils down to whether the term “realtime” modifies each term it precedes in
`
`the asserted claims including “API.” HTC contends that it does, and the IA agrees. HTC Br.
`
`3-11; IA Pet. 5-7. For each component to operate in “realtime” is to say that the component itself
`
`operates within certain limits to ensure that the data stream can be processed in realtime, 1'. e. , that
`
`all frames of video are displayed, or that all packets of voice data are transmitted in time. See
`
`HTC Br. 4-8; IA Pet. 5-7.
`
`App1e’s proposed construction, adopted by the ALJ, found that any “API that allows
`
`realtime interaction between” subsystems is a “realtime API.” ID at 41. We find that this
`
`

`
`PUBLIC VERSION
`
`construction improperly reads the term “realtime” out ofthe API limitation.6 See, e.g., Bicon, Inc.
`
`v. Straumann Ca, 441 F.3d 945, 950 (Fed. Cir. 2006) (“claims are interpreted with an eye toward
`
`giving effect to all terms in the claim”). Specifically, the ALJ’s construction makes the term
`
`“realtime” in connection with the API at most nominal and without any purpose of its own.7 That
`
`the ALJ’s construction for the “realtime API” includes the word “realtime” does not make the
`
`usage as construed any less nominal. Under Apple’s and the ALJ’s reading, the only operative
`
`use of realtime is the “realtime signal” itself, and the mere processing of the realtime signal under
`
`that reading necessarily gives rise to the existence of a “realtime API.” We do not believe that a
`
`person of ordinary skill would read all these terms merely as nominal surplusage.8 Rather, we
`
`conclude that a person of ordinary skill would understand that the term “realtime API” to mean
`
`that the API itself has defined upper bounded time limits. See, e. g. , Tr. 1329-1343, 1367-71 ,
`
`6 App1e’s proposed construction also read “realtime” out of the “realtime signal processing
`subsystem” limitation of claim 1:
`“a realtime signal processing subsystem for performing a
`plurality of data transforms comprising a plurality of realtime signal processing operations.” On
`review, HTC has focused only on the realtime API. Apple has not argued that it would be wrong
`to impose a “realtime” limitation on the API because the subsystem cannot accommodate a
`“realtime” limitation. Having reviewed the record, we believe that it would be proper to impose
`this limitation on the subsystem, and Apple has waived any argument to the contrary, see Apple
`Br. 2-7; Apple Reply Br. 4-13.
`
`7 This nominal usage applies not merely for the API (and the subsystem) of claim 1, but
`also for many limitations across the patent claims (asserted and unasserted): “realtime processor
`including a realtime operating system” (claim 4); “virtual realtime device” (claim 7); and “realtime
`engine” (claim 8).
`
`8 Based on the reasoning adopted in the ID, and which Apple defends before the
`Commission, a computer running Skype videoconferencing is “realtime” so long as Skype works
`properly, but once the computer buckles under the weight of other tasks and starts dropping
`frames, then the system is no longer realtime. Tr. 714-720 (Apr. 20, 2011) (Apple expert
`Nathaniel Polish). Thus, under this reasoning, as computer speeds increase, systems that had not
`been realtime suddenly become so through happenstance, and through no specific architectural
`detail such as a “realtime subsystem” or “realtime API.”
`
`

`
`1451-55.
`
`PUBLIC VERSION
`
`In adopting HTC’s proposed construction, we observe that unasserted claim 31 recites an
`
`API without the “realtime” modifier:
`
`“at least one application programming interface for
`
`receiving the requests generated by said device handler program .
`
`.
`
`. .”9 The applicant, therefore,
`
`knew how to claim any API that would function in a realtime system, in the manner that Apple
`
`contends claim l should be interpreted.
`
`We reject two of Apple’s arguments that the ALJ found influential:
`
`(1) treating
`
`“realtime” as a limitation throughout the claims leads to absurd results (though not with respect to
`
`the API itself); and (2) the patent specification does not disclose how each component enforces
`
`realtime limitations.
`
`ID at 26 n.l3, 29. With respect to the first argument, Apple stated that
`
`claim 24’s “realtime processor including an operating system” would make no sense if the
`
`processor is realtime but the operating system is not. The ALJ agreed.
`
`Id. However, the
`
`omission of “realtime” with respect to the operating system recited in claim 24 does not make the
`
`operating system “not realtime” as the ALJ assumed; as to those components the claims simply do
`
`not require them to be realtime. Similarly, the fact that the preamble of claim 1 describes a
`
`“signal processing system” without “realtime,” but the claim calls for a “realtime signal processing
`
`subsystem,” is not problematic. For one, no party has argued that the preamble of claim 1 is
`
`limiting. For another, the claim language establishes that some aspects of the system must be
`
`realtime (those specified), while others may or may not be (those that are not so specified).
`
`With respect to Apple’s second argument, Apple states that finding the term “realtime” to
`
`9 The patent claims have other examples of components not specifically described as
`“realtime,” for example, a “translation interface program” (claim 4), and a “device handler
`program” (claim 3 l).
`
`-10-
`
`

`
`PUBLIC VERSION
`
`have meaning as a modifier is contravened by insufficient guidance in the specification about
`
`enforcement of limitations. Cf id. at 29; Apple Reply Br. 9-10; cf col. 5 lines 37-63; col. 6 lines
`
`48-52, col. 6 line 67 - col. 7 line 4; col. 7 lines 8-12; col. 7 lines 46-51; col. 8 line 57-64 (resource
`
`allocation and assessment). No party has argued, however, that the claims are invalid as
`
`construed under 35 U.S.C. § 112. To the extent that the Commission must choose between mere
`
`inferences from the specification and the plain meaning of the claim terms as informed by the
`
`intrinsic record as a whole, the Commission chooses the latter.
`
`We also reject the ALJ’s finding that treating “realtime” as a limitation is inconsistent with
`
`the “flexibility” emphasized by the patent specification.
`
`ID at 28-29 (citing col. 1 lines 30-32;
`
`col. 11 lines 7-10). We do not find that rationale persuasive, as virtually any limitation would
`
`undermine flexibility, and adopting this rationale would be tantamount to applying a canon of
`
`construction favoring the unduly broad.”
`
`b)
`
`Infringement and Domestic Industry
`
`Apple does not make substantial infringement and domestic industry arguments under the
`
`Commission’s construction of “realtime API,” and there is no genuine dispute that the identified
`
`API in both the HTC and Apple products do not operate within a “defined upper bounded time
`
`limit” as the unchallenged construction of “realtime” requires. See HTC Br. 11-13. Rather,
`
`Apple contends that the construction is not “faithful to the intrinsic evidence.” Apple Br. 7. For
`
`10 The ID’s discussion of “hard realtime” and “soft realtime” on pages 29-32 is inapposite
`with respect to the issue under Commission review. Most of that discussion related to “without
`handling delays,” a limitation on realtime urged by HTC but not pursued on Commission review.
`The ALJ’s construction of “realtime” as “within a defined, upper bounded time limit” does not
`have the effect, when applied to the claimed realtime subsystem and realtime API, of transforming
`the claimed system into a rigid hard-wired device eschewed by the ID.
`
`-11-
`
`

`
`PUBLIC VERSION
`
`the reasons set forth above, we disagree and find that neither the accused products nor Apple’s
`
`domestic industry products practice the “realtirne API” limitation. As we will discuss below,
`
`however, even if Apple’s construction of “realtirne API” were to be accepted, the asserted patent
`
`claims would be invalid in view of AT&T’s VCOS system under that construction.
`
`2.
`
`“Device Handler”
`
`The ALJ construed the term “device handler,” which appears in claims 1 and 24, as Apple
`
`and the IA had proposed:
`
`“software associated with an interface device that sets up dataflow
`
`paths, and also presents data and commands to a realtime signal processing subsystem.” ID at 41,
`
`44. HTC had urged a different construction:
`
`“a software module specific to a device that sets up
`
`dataflow paths, and presents data and commands to the realtime signal processing system.” ID at
`
`41. We granted review of HTC’s petition for review of the claim construction of “device
`
`handler” and the application of that construction to infringement and domestic industry. Notice,
`
`76 Fed. Reg. 58537, -38 (Sept. 21, 2011) (Issue No. 2).
`
`a)
`
`Claim Construction
`
`As noted above, HTC sought to add the requirement that the device handler be “specific to
`
`93
`
`the device.
`
`See id.
`
`In its briefing on Commission review, HTC no longer seeks to add that
`
`construction to the “device handler” limitation. Rather, HTC claims that its previous arguments
`
`in support of that construction now support a different argument that “associated with” in the
`
`ALJ’s construction means that “the device handler must know .
`
`.
`
`. about the device it supposedly
`
`handles,” as opposed to the device handler “merely be[ing] somewhere in the data path for data
`
`that originated at the ‘device.’” HTC Br. 23. Tellingly, HTC offers no construction. We agree
`
`with Apple, Apply Reply Br. 16, that the issue, as presented by HTC, is not one of claim
`
`construction, and to the extent that it is, the claim construction issue has been waived.
`
`-12-
`
`

`
`PUBLIC VERSION
`
`We observe that the petitions and briefs in this investigation are replete with efforts by
`
`HTC and Apple to label many or most disputed issues to be disputed issues of claim construction,
`
`even when there was no dispute as to the meaning of a term, or after a party’s own construction had
`
`been adopted. These attempts cut across all the patents and are improper. The Commission was
`
`mindful to specify expressly in its review notice (which issued in the Federal Register on
`
`September 21, 2011) those issues that fairly involved claim constructions, and those in which the
`
`only issue genuinely in dispute was the application of a claim construction, z'.e. , infringement,
`
`validity, or domestic industry. There is a distinction between a claim construction and application
`
`of the claim construction. See, e. g., Tessera, Inc. v. ITC, 646 F.3d 1357, 1364 (Fed. Cir. 2011).
`
`Disagreements over an application of a construction - a finding of infringement or invalidity and
`
`the analysis therefor — do not themselves give rise to opportunities, after the fact, to change the
`
`agreed-upon or adopted constructions. Commission proceedings are not an iterative process
`
`whereby each unfavorable resolution results in an opportunity to offer a changed construction, or
`
`to construe the construction, in the hope of effecting a different outcome.
`
`b)
`
`Infringement
`
`HTC takes issue with how the term “presents data” in the ALJ’s construction of “device
`
`handler” is applied with regard to the accused products. HTC believes that the device handlers in
`
`its accused products do not present data because they do not themselves “receive or transmit data”;
`
`rather, they direct the flow elsewhere. See, e. g., HTC Br. 15-17. The constructions proposed by
`
`all the parties and the construction adopted by the ALJ included “presents data,” see ID at 41, and
`
`not “receives or transmits data,” as argued now by HTC. We reject HTC’s attempt to create a
`
`-13-
`
`

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`PUBLIC VERSION
`
`claim construction dispute,” and we affirm the ALJ’s determination that the accused products
`
`contain a claimed device handler.
`
`ID at 48-49.
`
`HTC also takes issue with whether the accused device handlers are “associated with an
`
`interface device” as urged by Apple and as required by the ALJ's construction.
`
`Id. at 41, 44.
`
`HTC argues that this, too, is a matter of claim construction, HTC Br. 23, but here, too, we disagree.
`
`The claim has been construed, and all that is at issue on review is application of the construction.
`
`HTC does not invite the Commission to adopt the construction it previously urged, that the device
`
`handler be “specific to” a device. HTC Br. 23-27.
`
`Instead, HTC takes issue with the application
`
`of the ALJ’s construction, which we find to be a question of infringement.” We agree with the
`
`11 Even were we to consider the issue in the context of claim construction, we would reject
`HTC’s proposed construction of the construction. HTC does not offer a dictionary definition in
`support of its argument, and we do not believe that a dictionary definition supports HTC.
`2 The
`New Shorter Oxford English Dictionary 2340 (1993) (providing as its first definition of the verb
`“present”:
`“Make present, bring into the presence of”).
`Instead, HTC relies on the specification
`and figures, which show the preferred embodiments handler's reception and transmission of data.
`HTC Br. 16.
`In particular, HTC argues that Figure 2 shows data passing through the adapter
`handler 44.
`Id. Thus, HTC argues that the specification shows that the device handler act of
`“presenting data” is to “receive or transmit data.” HTC’s arguments, we believe, represent an
`improper incorporation into the claim language of the preferred embodiment’s limitations. We
`reject HTC’s construction without reaching Apple’s counterargument that HTC’s construction
`would exclude the preferred embodiment. See Apple Reply Br. 17-20; HTC Br. 18-23.
`Accordingly, if the question were one of claim construction, we agree with the ALJ.
`
`12 Again, even were we to consider the issue in the context of claim construction, we
`would reject HTC’s proposed construction of the construction. HTC does not rely on any
`dictionary definition to support its narrow interpretation of “associated with” to mean something
`akin to “specific to.” Rather, HTC declares that the plain meaning is to the contrary, HTC Br. 26,
`and then argues that intrinsic and extrinsic evidence support its interpretation, id. at 26-31. HTC's
`argument is based principally on a passage from the ’263 patent specification:
`“An adapter
`handler 44 is specific to the particular adapter 36 and carries out features associated with that
`adapter.” Col. 5 lines 8-9. The ALJ found that this passage related to the preferred embodiment
`and did not constrain the construction of “handler” generally.
`ID at 43. We agree.
`In addition,
`we find that the extrinsic evidence cited by HTC, Tr. 228-31, 275 (Lynch); Tr. 666-68 (Polish); Tr.
`[Footnote continued on the next page]
`
`-14-
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`

`
`PUBLIC VERSION
`
`ALJ’s infringement analysis at pages 49-50 of the ID, and conclude that the accused devices
`
`contain the claimed “device handlers.”13
`
`3.
`
`A Realtime API “Coupled Between” Two Subsystems
`
`Claim 1 requires that the realtime API be “coupled between the subsystem and the realtime
`
`signal processing subsystem,” 1'. e., between the structures of the first two elements of the claim.
`
`The parties agreed that “coupled between” should be construed as “functionally connected to, but
`
`distinct from.”14 The ALJ found that HTC’s accused products practice the “realtime API”
`
`limitation because the “.h” header files in the accused Android products are “coupled between”
`
`two subsystems as required by claim 1.
`
`ID at 36-37, 56-59.
`
`It is unclear why the ALJ merged
`
`some of his infringement discussion into his claim construction analysis, see id. at 36-37, as the
`
`only question at issue is whether HTC infringes the patent claims on the basis of these “.h” header
`
`files under the claim construction agreed upon by the parties. We determined to review the
`
`infringement question. 76 Fed. Reg. 58537-38 (Sept. 21, 1011) (Issue No. 3) (“Whether the API
`
`of the accused products is ‘coupled between’ two subsystems”).
`
`Despite the Commission’s limitation of review on this point to infringement, HTC
`
`argues that the question on review is properly one of claim construction. HTC Br. 29-31. We
`
`disagree. As noted, HTC’s noninfringement argument is based on the fact that the accused APIs
`
`[Footnote continuedflom the previous page]
`1297-98 (Brandt), is consistent with the plain meaning of “associated wit
`question were one of claim construction, we agree with the ALJ.
`
`97
`
`.
`
`Accordingly, if the
`
`13 HTC’s domestic industry argument is predicated on its “associated with” argument that
`we have rejected in connection with infringement. See HTC Br. 28-29.
`
`14 Joint Mot. of All Relevant Parties to Amend the Joint List of Undisputed Claim Terms
`with Agreed Constructions App. A at 14 (Feb. 24, 2011).
`
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`PUBLIC VERSION
`
`are “header files,” also known as “.h” files. HTC Br. 33-34. As such, these files are prepended
`
`(as headers) to other files. See id. at 33 & n.l0. HTC argues that because the headers are
`
`attached to code that Apple accused as the realtime signal processing subsystem, the headers could
`
`no longer be an intermediary that is “functionally connected to, but distinct from” the two

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