Case: 20-1441
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`Document:99
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`Page:1_
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`Filed: 07/14/2022
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`NOTE: This disposition is nonprecedential.
`
`GAnited States Court of Appeals
`for the federal Circuit
`
`MOBILITY WORKX, LLC,
`Appellant
`
`Vv.
`
`UNIFIED PATENTS, LLC,
`Appellee
`
`KATHERINEK. VIDAL, UNDER SECRETARY OF
`COMMERCEFOR INTELLECTUAL PROPERTY
`AND DIRECTOR OF THE UNITED STATES
`PATENT AND TRADEMARKOFFICE,
`Intervenor
`
`2020-1441
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2018-
`01150.
`
`Decided: July 14, 2022
`
`DAVID A. RANDALL, Hackler Daghighian Martino &
`Novak, Los Angeles, CA, argued for appellant. Also repre-
`sented by MICHAEL MACHAT, Law Offices of Michael
`Machat, PC, West Hollywood, CA.
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
`
`JASON R. MUDD,Erise IP, P.A., Overland Park, KS, ar-
`guedfor appellee. Also represented by ERIC ALLAN BURESH;
`ASHRAF FAWZY, JONATHAN RUDOLPH KOMINEK STROUD, Uni-
`fied Patents, LLC, Washington, DC.
`
`DANA KAERSVANG,Appellate Staff, Civil Division, United
`States Department of Justice, Washington, DC, argued for
`intervenor. Also represented by MELISSA N. PATTERSON;
`KAKOLI CAPRIHAN, SARAH E. CRAVEN, THOMAS W. KRAUSE,
`FARHEENA YASMEEN RASHEED,Office of the Solicitor, United
`States Patent and Trademark Office, Alexandria, VA.
`
`ROBERT GREENSPOON, Dunlap, Bennett, & Ludwig,
`PLLC, Chicago, IL, for amicus curiae US Inventor, Inc.
`
`Before NEWMAN, SCHALL, and DYK, Circuit Judges.
`
`Dyk, Circuit Judge.
`
`Mobility Workx, LLC (“Mobility”) appeals a decision of
`the Patent Trial and Appeal Board (“Board”) determining
`that claims 1, 2, 4, 5, and 7 of U.S. Patent No. 8,213,417
`(“the ’417 patent”) were unpatentable as obvious. Weaf-
`firm.
`
`BACKGROUND
`
`I
`
`Mobility is the ownerof the ’417 patent, which is titled
`“System, Apparatus, and Methods for Proactive Allocation
`of Wireless Communication Resources.” ’417 patent,col. 1,
`ll. 1-8. The patent is “generally directed to allocation of
`communication resources in a communications network.”
`Mobility Br. 7. On June 1, 2018, Unified Patents, LLC
`(“Unified”) filed a petition seeking inter partes review of
`claims 1-7 of the ’417 patent on the theory that those
`claims would have been obvious over U.S. Patent No.
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`5,825,759 (“Liu”) in combination with several otherrefer-
`ences. On December 2, 2019, the Board issuedits final
`written decision, determining that claims1, 2, 4, 5, and 7
`were unpatentable as obvious, but that claims 3 and 6 were
`not shown to be unpatentable. Mobility appealed.
`
`In addition to challenging the Board’s decision on the
`merits, Mobility raised several constitutional challenges
`regarding the Board based on the Supreme Court’s decision
`in Tumey v. Ohio, 237 U.S. 510 (1927), and additionally re-
`quested a remand under United States v. Arthrex, Inc., 141
`S. Ct. 1970 (2021). We rejected Mobility’s Tumey argu-
`ments and, without reaching the merits, remanded to the
`Board “for the limited purpose of allowing Mobility the op-
`portunity to request Director rehearing of the final written
`decision.” Mobility Workx, LLC v. Unified Patents, LLC, 15
`F.4th 1146, 1157 (Fed. Cir. 2021). At the same time, we
`retained jurisdiction over the appeal.
`
`On the remand, Mobility did not request Director re-
`hearingand, accordingly, the Board’s final written decision
`in the case remainsthefinal agency decision. In May 2022,
`the parties jointly informed the court that “they [we]re not
`aware of any reason that the Court should not proceed with
`a decision on the merits in this case.” Joint Notice 1, ECF
`No. 97. Welifted the stay and reinstated the appeal on
`May12, 2022.
`
`II
`
`The merits are now before us. As recited in our prior
`opinion, the Backgroundsection of the ’417 patent explains
`that mobile communication systemsare typically composed
`of mobile nodes(e.g., cell phones) that communicate with
`one another through a series of base stations. Basesta-
`tions serve different zonesor cells, such that when a mobile
`node movesfrom onecell to another, it must connect to a
`new base station. When a mobile node has connected to a
`new base station, i.e., when it is moving, it must let other
`mobile nodes know where it can be reached. This can be
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`accomplished by having a mobile node register with a
`“home agent so that the home agent can remain a contact
`point
`for other nodes
`that wish to exchange mes-
`sages... with the mobile node as it moves from oneloca-
`tion to another.” ’417 patent, col. 1, ll. 39-44.
`
`This system “allows a mobile node to use two IP ad-
`dresses, one being a fixed home address and the other be-
`ing a care-of address.” Id. at col. 1, ll. 45-47. The home
`address is assigned by the home agent. The care-of ad-
`dress, on the other hand, is received when a mobile node
`movesout of its home network and connectsto foreign net-
`works using foreign agents that act “as wireless access
`points distributed throughout a coverage area of a network
`or an interconnection of multiple networks.” Id. at col. 1,
`ll. 57-60. However, delays and information losses can oc-
`cur when a mobile node movesfrom one foreign network to
`another because “the new communication link cannot be
`set up until the mobile node arrives in the new foreign
`agent’s physical region of coverage.” Mobility Br. 8.
`
`The 417 patent attempts to prevent these delays and
`data losses by using a ghost foreign agent and a ghost mo-
`bile node that “can be configured to register the mobile
`node and allocate resources for communicating with the
`mobile node according to a predicted future state of the mo-
`bile node.” °417 patent, col. 2, ll. 44-61.
`In other words,
`“the ghost mobile node operates by signaling the foreign
`agent before the mobile node arrives in the foreign agent’s
`physical region of coverage, based upon the predicted fu-
`ture state of the mobile node.” Mobility Br. 9. This, in turn,
`increases the speed with which a mobile node can connect
`to a new network, reducing delays and avoiding infor-
`mation losses.
`
`Claim 1 of the 417 patent (from which claims2, 4, and
`5 depend)recites:
`
`A system for communicating between a mobile
`node and a communication network; the network
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`having at least one communications network node
`that is interconnected using a proxy mobile inter-
`net protocol (IP), comprising:
`
`at least one mobile node;
`
`at least one homeagent;
`
`at least one foreign agent;
`
`a ghost-foreign agent that advertises messages
`to one of the mobile nodes indicating pres-
`ence of the ghost-foreign agent on behalf of
`one of the foreign agents when the mobile
`node is located in a geographical area
`where the foreign agent is not physically
`present; and
`
`a ghost-mobile node that creates replica IP
`messages on behalf of a mobile node, the
`ghost-mobile node handling signaling re-
`quired to allocate resources and initiate mo-
`bility on behalf of the mobile node,
`the
`ghost-mobile node triggering signals based
`on a predicted physical location of such mo-
`bile node or distance with relation to the at
`least one foreign agent.
`
`417 patent, col. 12, ll. 49-67 (emphasis added).
`
`During the Board proceedings, Mobility argued that
`the claims were not obvious becausetheprior art failed to
`disclose the ghost-foreign agent limitation. The Board
`found that Liu, or alternatively, the combination of Liu
`with U.S. Patent Application Publication 2002/0131386 Al
`(“Gwon”), taught the ghost-mobile node limitation. The
`Board concluded that claims 1, 2, 4, 5, and 7 were shown to
`be obvious in light of the combination of Liu, Gwon, and
`various other references. We havejurisdiction over this
`appeal under 28 U.S.C. § 1295(a)(4)(A).
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`DISCUSSION
`
`“Obviousnessis a mixed question of fact and law,” and
`the Board’s conclusion that the claimsare obviousis a “le-
`gal determination subject to de novo review” while “subsid-
`lary factual
`findings
`are
`reviewed for
`substantial
`evidence.” Novartis AG v. Torrent Pharms. Lid., 853 F.3d
`1316, 1327 (Fed. Cir. 2017). Substantial evidence is “such
`relevant evidence as a reasonable mind mightaccept as ad-
`equate to support a conclusion.” Consol. Edison Co.
`uv.
`NLBB, 305 U.S. 197, 229 (19388).
`
`Mobility argues that the Board erred with respect to
`claim 1 because Liu, the relevant prior art reference, does
`not teach the “the ghost-mobile node triggering signals
`based on a predicted physical location of such mobile node
`or distance with relation to the at least one foreign agent”
`limitation (“the triggering limitation”). ’417 patent, col. 12,
`ll. 61-67.1 Mobility does not separately challenge the
`Board’s decision with respect to dependentclaims 2, 4, and
`5, so they stand or fall with claim 1. Mobility also raises
`no arguments regarding independent claim 7, which the
`Board found unpatentable on other grounds.
`
`Liu relates to “methods and apparatus for supporting
`data and service mobility to users of mobile networks.”
`Liu, col. 1, 11.1416. It discloses the following:
`
`In accordance with one aspectof the invention,net-
`work services and resources are distributed to a
`mobile user in a mobile communication system by
`providing the mobile user with a mobility (M)-agent
`
`The Board alternatively concluded that the combi-
`1
`nation of Liu and Gwon taught this limitation. Mobility
`argues that this waserror for “the same underlying issue”
`that it raises with respect to Liu alone. Mobility Br. 65.
`Because weaffirm the Board’s decision based on Liu alone,
`we need not address the combination of Liu and Gwon.
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`[(corresponding to the ‘ghost-mobile node’ of the
`’417 patent)] executing on a home fixed host or
`router. It is then determined that the mobile user
`is or will be travelling to a destination that is out-
`side a service area of the homefixed host or router,
`and a pre-assignment request is sent from the M-
`agent to at least one mobile floating (MF)-agent
`manager executing on a correspondingoneofa like
`numberof remote fixed hosts or routers located at
`the destination. ... A mobile floating (MF)-agent
`is then established for use by the mobile user at each
`of the remote fixed hosts or routers, and the M-agent
`is used to send data orservice information from the
`service area of the homefixed host or router to the
`MF-agentat each of the remote fixed hosts or rout-
`ers.
`In this way, services and/or data may bepre-
`connected/pre-arranged at the mobile user’s desti-
`nation.
`
`Liu,col. 2, Il. 11-84.
`
`The Board determined that Liu’s M-Agent teaches the
`“ghost-mobile node” limitation, which includesthetrigger-
`ing limitation. See J.A. 29-31. The Board was “persuaded
`by [Unified’s] unrebutted evidence that Liu .. . teach[es] or
`suggest[s]” the ghost-mobile node limitation and “agree[d]
`with [Unified] that Liu’s M-agent handles pre-assignment
`signaling on behalf of the mobile device to prearrange ser-
`vices (allocate resources) and initiate mobility on behalf of
`the mobile device, and further does so based on a predicted
`physical location of the mobile device.” J.A. 31.
`
`Mobility argues that this was error under the plain
`meaningof “trigger” becausein Liu,it is “the mobile termi-
`nal [(i.e., the cell phone) that] generates and sendsthepre-
`assignment request, along with the address of the new lo-
`cation of where it is traveling to, and the M-Agent [(the
`ghost-mobile node of the ’417 patent)] merely forwards the
`request to the MF-agent manager(s) at the new location(s)
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`specified by [the] mobile node,” and that “[florwarding is
`not triggering.” Mobility Br. 61; Mobility Reply Br. 25. In
`supportof its argument, Mobility cites to the followingpor-
`tion of Liu:
`
`The M-agent 50 is a representative of the user 21
`in the network andis responsible in part for creat-
`ing, deleting and managing the MF-agents on be-
`half of mobile users. An M-agent 50 requests
`creation or assignment of MF-agents 52. As shown
`in FIG. 7 a mobile terminal 55 [(cell phone)] sends
`an MF-agent assignment request to its M-agent 50
`[(the ghost-mobile node)j, in the local network, with
`an addressof a newlocationit is travelling to (701).
`The new location may be one that has been explic-
`itly provided by the user 21, or it may be onepre-
`dicted by the PMMI®! functions 46. The assignment
`request is a request to establish (i.e., alternatively
`create or pre-assign) an MF-agent 52 at the loca-
`tion that the mobile terminal 55 will be travelling
`to and thus have any necessary services and data
`ready for the mobile terminal, when it arrives at
`the new location. The M-agent 50 then registers the
`request and forwards the request 65 to the remote
`MF-agent managerat the new location (702).
`
`Liu,col. 7, Il. 22-88 (emphasis added).
`
`Mobility concedes that it did not raise this argumentto
`the Board and thatit does so for the first time on appeal.
`
`PMM stands for “Predictive Mobility Manage-
`2
`ment.” Liu, col. 19, ll. 4-14. It is “used to predict the future
`location of a mobile user according to the user’s movement
`history patterns. The combination of the mobile floating
`agent concepts with the predictive mobility management
`allow for service and resource pre-arrangement.” Id. (em-
`phasis added).
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`For that reason, it may be that the argument is waived.
`E.g., MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d
`1284, 1293 n.3 (Fed. Cir. 2015) (finding patentee waived
`argument whereit raised only “a few scattered sentences”
`at the oral hearing); Fresenius USA, Inc. v. Baxter Int'l,
`Inc., 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“[I]f a party fails
`to raise an argumentbeforethetrial court, or presents only
`a skeletal or undeveloped argumentto thetrial court, we
`may deem that argument waived on appeal.”).
`
`In any case, the argumentis facially incorrect. The
`417 patent claims a ghost-mobile node “handling signaling
`required to allocate resources and initiate mobility on be-
`half of the mobile node, the ghost-mobile node triggering
`signals based on a predicted physical location of such mo-
`bile node or distance with relation to the at least one for-
`eign agent.” ’417 patent, col. 12, ll. 62-67. Unified’s expert
`testified that “[t]he M-Agent acts on behalf of the mobile
`device by initiating registration with a foreign agent in the
`foreign network.” J.A. 589 (emphasis added). The same
`section of Liu quoted earlier discloses that the M-Agentis
`“responsible in part for creating, deleting, and managing
`the MF-agents on behalf of mobile users” and that “M-
`Agent 50 requests creation or assignment of MF-agents
`52.” Liu, col. 7, ll. 283-24, 26-27. The M-Agent performs
`these functions after receiving an assignment request from
`a mobile node with “an address of a new locationit is trav-
`elling to.” Jd. at col. 7, ll. 26-28.
`
`Mobility did not request claim construction of the trig-
`gering limitation before the Board. The plain meaning of
`trigger is “[a]n event or situation that upon its occurrence
`activates a thing or a process.” Trigger, Black’s Law Dic-
`tionary (11th ed. 2019). The M-Agent (i.e. ghost-mobile
`node)plainly triggers signals “to allocate resources and in-
`itiate mobility on behalf of the mobile node .
`.
`. based on a
`predicted physical location” whenit registers and forwards
`the assignment request from mobile nodes (cell phones) to
`MF-agents. °417 patent, col. 12, ll. 683-66. Nothing in the
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`MOBILITY WORKX, LLC v. UNIFIED PATENTS, LLC
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`plain meaning of the triggering limitation forecloses the M-
`Agentin turn being triggered by a request from the mobile
`node(cell phone). Wesee noerrorin the Board’s obvious-
`ness determination, which is supported by substantial evi-
`dence.
`
`CONCLUSION
`
`Weaffirm the Board’s decision holding unpatentable
`claims 1, 2, 4, 5, and 7 of the ’417 patent.
`
`AFFIRMED
`
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`Case: 20-1441. Page:1_Filed: 07/14/2022Document:100
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`
`
`GAnited States Court of Appeals
`for the Federal Circuit
`
`MOBILITY WORKX, LLC,
`Appellant
`
`Vv.
`
`UNIFIED PATENTS, LLC,
`Appellee
`
`KATHERINEK. VIDAL, UNDER SECRETARY OF
`COMMERCE FOR INTELLECTUAL PROPERTY
`AND DIRECTOR OF THE UNITED STATES
`PATENT AND TRADEMARKOFFICE,
`Intervenor
`
`2020-1441
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2018-
`01150.
`
`JUDGMENT
`
`THIS CAUSE having been considered,it is
`
`ORDERED AND ADJUDGED:
`
`AFFIRMED
`
`July 14, 2022
`Date
`
`FOR THE COURT
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`