Case: 19-1483 Document: 121 Page: 1 Filed: 09/15/2022
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`POLARIS INNOVATIONS LIMITED,
`Appellant
`
`v.
`
`DERRICK BRENT, DEPUTY UNDER SECRETARY
`OF COMMERCE FOR INTELLECTUAL PROPERTY
`AND DEPUTY DIRECTOR OF THE UNITED
`STATES PATENT AND TRADEMARK OFFICE,
`Intervenor
`______________________
`
`2019-1483
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`01500.
`
`
`-------------------------------------------------
`
`
`
`POLARIS INNOVATIONS LIMITED,
`Appellant
`
`v.
`
`DERRICK BRENT, DEPUTY UNDER SECRETARY
`OF COMMERCE FOR INTELLECTUAL PROPERTY
`AND DEPUTY DIRECTOR OF THE UNITED
`STATES PATENT AND TRADEMARK OFFICE,
`Intervenor
`______________________
`
`

`

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`2
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`POLARIS INNOVATIONS LIMITED v. BRENT
`
`
`2019-1484
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2017-
`00901.
`
`______________________
`
`Decided: September 15, 2022
`______________________
`
`MATTHEW C. PHILLIPS, Laurence & Phillips IP Law
`LLP, Washington, DC, argued for appellant. Also repre-
`sented by KEVIN BRENT LAURENCE, DEREK MEEKER; PAUL
`EHRLICH, MATTHEW D. POWERS, STEFANI SMITH, Tensegrity
`Law Group LLP, Redwood Shores, CA.
`
` MAUREEN DONOVAN QUELER, Office of the Solicitor,
`United States Patent and Trademark Office, Alexandria,
`VA, argued for intervenor in 2019-1483. Also argued by
`OMAR FAROOQ AMIN in 2019-1484. Also represented by
`THOMAS W. KRAUSE, ROBERT J. MCMANUS, FARHEENA
`YASMEEN RASHEED; MICHAEL S. FORMAN in 2019-1483;
`MELISSA N. PATTERSON, Appellate Staff, Civil Division,
`United States Department of Justice, Washington, DC.
`______________________
`
`Before PROST, CHEN, and STOLL, Circuit Judges.
`STOLL, Circuit Judge.
`These appeals involve two inter partes review proceed-
`ings initiated by NVIDIA Corporation challenging two pa-
`tents owned by Polaris Innovations Limited—U.S. Patent
`Nos. 6,532,505 and 7,405,993. The Patent Trial and Ap-
`peal Board determined that all challenged claims are un-
`patentable. Polaris appealed. We remanded the case due
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`3
`
`to Appointments Clause issues and it has now returned.
`We affirm.
`
`BACKGROUND
`I
`These appeals involve two unrelated patents directed
`to computer memory. The ’993 patent, at issue in the
`19-1484 appeal, relates to an improved control component
`configuration. The ’505 patent, at issue in the 19-1483 ap-
`peal, involves a shared-resource system in which logical
`controls are used to manage resource requests.
`A
`The ’993 patent is titled “Control Component for Con-
`trolling a Semiconductor Memory Component in a Semi-
`conductor Memory Module.” ’993 patent, Title. The
`specification explains that the control component can send
`both address signals and control signals through the same
`leads, allowing the control component to perform its func-
`tions with fewer leads. See, e.g., id. at col. 2 l. 57–col. 3
`l. 23.
`On appeal, Polaris’s argument focuses on dependent
`claim 2’s requirement that the “semiconductor memory
`component comprises a plurality of memory chips.” Id.
`at col. 11 ll. 39–40. Claim 2 (and independent claim 1 from
`which claim 2 depends) recites:
`1. A control component for controlling a semicon-
`ductor memory component in a semiconductor
`memory module, comprising:
`a control unit for generating control signals for con-
`trolling read and write access to the semiconductor
`memory component and for generating address sig-
`nals for addressing memory cells in the semicon-
`ductor memory component for read and write
`access;
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`a plurality of address terminals for providing the
`address signals; and
`a selection circuit for supplying one of the address
`terminals with a selected signal selected between
`one of the address signals and one of the control
`signals.
`2. The control component as claimed in claim 1,
`wherein the semiconductor memory component
`comprises a plurality of memory chips; and
`wherein the control unit generates a first of the
`control signal for selecting one of the memory chips
`for read and write access.
`Id. at col. 11 ll. 25–43 (emphasis added to disputed limita-
`tion). Polaris correlates the terms in claim 2 to Figures 1
`and 2 of the ’993 patent, shown in a combined fashion be-
`low:
`
`FIG 1
`
`FIG 2A
`
`t'-. HB SEMICONDUCTOR
`MEMORY COMPONENT
`
`
`19-1484 Appellant’s Br. 7 (annotating ’993 patent, Figs. 1
`& 2A). As described in the claims and shown in the figures
`above, the chips (C) are a part of the semiconductor
`memory component (HB) which is integrated into the
`
`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`5
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`semiconductor memory module (HM). The semiconductor
`memory module also includes a control component (SB).
`B
`The ’505 patent describes a “universal resource access
`controller” (104) for directing requests for a shared re-
`source, such as a shared memory (108):
`
`system bus
`106
`
`f . (
`
`•••••••••••
`
`i address bus
`1
`106·1
`it===::::;;:::::;v1
`processor ! oommand bus
`102
`I
`106•2
`
`(system) i
`i 1¢::.;;:::::==v
`
`untversal
`command
`200
`
`110
`
`Look-up
`Table
`118
`
`command
`sequencer
`116
`
`resource
`state
`
`sequenced
`universal
`command
`220
`
`configurable
`system lntorface
`
`resource
`tags
`114
`
`memory
`108
`(shared
`resource)
`
`data bus
`106-3
`··········--······t _______ _, '
`
`universal
`controller
`104
`
`
`
`Fig. 1B
`’505 patent, Fig. 1B; see also id. at Title.
`The ’505 patent discloses that the controller uses cer-
`tain information to direct shared-resource requests, includ-
`ing: (1) the “current state” of the shared resource, id.
`at col. 7 ll. 3–29, (2) the “requested state” of a shared re-
`source, id. at col. 27 l. 41–col. 30 l. 19, and (3) a “character-
`istic operating parameter” of the shared resource, id.
`at col. 7 l. 61–col. 8 l. 23, col. 8 l. 56–col. 9 l. 5. The dispute
`on appeal centers on this shared-resource request infor-
`mation, and in particular where that information is stored.
`Dependent claim 2 requires these pieces of information to
`be stored in certain “buffers,” as recited below:
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`1. A universal resource access controller coupled to
`a requesting system and a resource, wherein when
`the requesting system desires access to the re-
`source, the requesting system generates a resource
`access request which is passed to the universal re-
`source controller which, in turn, uses a specific
`characteristic operating parameter of the re-
`quested resource, a current state of the requested
`resource, and a requested state of the requested re-
`source to generate a corresponding sequenced com-
`mand suitable for accessing the resource as
`required by the requesting system.
`2. A universal resource access controller as recited
`in claim 1, wherein the universal resource control-
`ler comprises:
`a configurable system interface coupled to the re-
`questing system suitably arranged to both receive
`the resource access request and to generate a cor-
`responding universal command;
`a universal command sequencer coupled to the con-
`figurable system interface;
`a resource tag buffer coupled to the command se-
`quencer arranged to store a resource tag arranged
`to identify the current state of the requested resource
`and a resource tag arranged to identify the re-
`quested state of the requested resource; and
`a characteristic operating parameter buffer cou-
`pled to the command sequencer arranged to store
`the characteristic operating parameter associated
`with the requested resource,
`wherein the universal command sequencer uses
`the respective resource tags that identify the cur-
`rent state and the requested state of the requested
`resource and
`the
`characteristic
`operating
`
`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`7
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`parameter associated with the requested resource
`to generate the sequenced universal command.
`Id. at col. 27 l. 41–col. 28 l. 6 (emphasis added to disputed
`limitation). As described in claim 2, the “current state” and
`the “requested state” resource tags are stored in a “resource
`tag buffer,” the disputed term on appeal.
`Apart from the claims themselves, the description of
`the “resource tag buffer” in the specification is light. The
`specification mentions “resource tag buffer” or “tag buffer”
`only six times and illustrates that buffer in only two figures
`(one being Figure 1B, above). Id. at col. 7 l. 31, col. 7
`ll. 50–51, col. 7 l. 56, col. 7 l. 59, col. 8 l. 67, col. 10 l. 43,
`Figs. 1B & 1D. These portions of the specification are not
`illuminating as to the structure of this buffer. Instead,
`they describe the buffer functionally as storing certain re-
`source tags. And the two figures merely depict the “re-
`source tags 114” as a rectangular box, with no further
`detail.
`
`II
`These appeals involve two IPR proceedings that were
`remanded by our court in light of our decision in Arthrex,
`Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir.
`2019) (Arthrex I) due to Appointments Clause issues.
`While the IPR was on remand, the Supreme Court vacated
`our decisions vacating the Board’s final written decisions
`based on its decision in United States v. Arthrex, Inc.,
`141 S. Ct. 1970 (2021) (Arthrex II). This vacated vacatur
`thus reinstated the Board’s final written decisions and led
`to a dispute regarding a joint motion to terminate that was
`filed during remand, as explained below.
`In May 2016, Polaris filed a complaint accusing
`NVIDIA of infringing certain claims of the ’505 and ’993 pa-
`tents, among others. NVIDIA responded by filing IPR pe-
`titions challenging certain claims in those patents.
`NVIDIA filed its petition against the ’993 patent on
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`February 14, 2017, and the Board issued its final written
`decision on December 19, 2018, holding all challenged
`claims unpatentable. NVIDIA Corp. v. Polaris Innovations
`Ltd., No. IPR2017-00901, 2018 WL 6720618 (P.T.A.B.
`Dec. 19, 2018) (’993 Decision). NVIDIA filed its petition
`against the ’505 patent on May 30, 2017, and the Board is-
`sued its final written decision on December 4, 2018, hold-
`ing all challenged claims unpatentable. NVIDIA Corp. v.
`Polaris Innovations Ltd., No. IPR2017-01500, 2018 WL
`6380663 (P.T.A.B. Dec. 4, 2018) (’505 Decision).
`Polaris appealed both decisions. Polaris and NVIDIA
`then settled, and thus NVIDIA withdrew from these ap-
`peals. The PTO intervened in the appeals to defend the
`Board’s decisions. On March 20, 2020, the cases were cal-
`endared for argument on May 8, 2020. Three days later,
`our court declined to rehear Arthrex I en banc.1 Accord-
`ingly, we vacated the Board’s decisions and remanded,
`granting the remedy required by us in Arthrex I. 19-1484
`ECF No. 65; 19-1483 ECF No. 68.
`On remand, the Board administratively suspended the
`IPRs (along with many others) pending potential Supreme
`Court action in Arthrex I. During that administrative sus-
`pension, on June 10, 2020, Polaris and NVIDIA filed a joint
`motion to terminate the proceedings. 19-1484 SAppx. 7–15
`(joint motion to terminate); 19-1483 SAppx. 7–15 (same).2
`
`
`1 The panel decision on Arthrex I issued on October
`31, 2019, well before argument was scheduled, but the
`court did not decline to rehear the case en banc until March
`23, 2020, three days after oral argument was scheduled in
`this case.
`2 19-1483 SAppx. citations herein refer to the appen-
`dix filed concurrently with Appellant’s Motion to Vacate Fi-
`nal Decision. 19-1483 ECF No. 90.
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`9
`
`While those motions were pending at the Board, the
`Supreme Court vacated our decision in Arthrex I, substi-
`tuting an alternative remedy for violation of the Appoint-
`ments Clause. Arthrex II, 141 S. Ct. at 1987–88. In view
`of its decision in Arthrex II, the Supreme Court vacated our
`vacatur of the Board’s final written decisions in these Po-
`laris appeals, thus reinstating the Board’s final written de-
`cisions. 19-1484 SAppx. 26; 19-1483 SAppx. 25. On
`remand, we reinstated the appeals and asked Polaris to ex-
`plain “how it believes its case should proceed in light of Ar-
`threx [II].” 19-1484 ECF No. 73; 19-1483 ECF No. 72.
`Polaris argued that we should vacate and remand for the
`Board to grant termination. The PTO opposed and sug-
`gested limited remand for Director review was appropriate.
`We remanded “for the limited purpose of allowing the par-
`ties to seek further action by the Director.” 19-1484 ECF
`No. 84; 19-1483 ECF No. 76.
`On remand, Polaris asked the Board for guidance re-
`garding how the remand should proceed. Polaris advocated
`that the Board should grant Polaris’s then-still-pending
`motion to terminate. 19-1484 SAppx. 25–26; 19-1483
`SAppx. 24–25.
`Chief Administrative Judge Boalick responded on be-
`half of the Board on October 29, 2019, in an “Order” speci-
`fying the appropriate process on remand. 19-1484
`SAppx. 25–27; 19-1483 SAppx. 24–26. The Board deter-
`mined that termination was not appropriate because, due
`to the Supreme Court’s decision, the “final written decision
`in each of these cases is not vacated, and it is not necessary
`for the Board to issue a new final written decision in either
`of these cases.” 19-1484 SAppx. 27; 19-1483 SAppx. 26. In-
`stead of termination, the Board determined “the appropri-
`ate course of action on remand . . . [wa]s to authorize
`[Polaris] to request Director review.” 19-1484 SAppx. 27;
`19-1483 SAppx. 26. This order effectively denied the joint
`motions to terminate.
`
`

`

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`10
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`POLARIS INNOVATIONS LIMITED v. BRENT
`
`Polaris filed its requests for Director rehearing.
`Mr. Hirshfeld, performing the functions and duties of the
`Director, denied rehearing. Polaris then filed notices with
`our court notifying us of the Director’s denial of rehearing.
`In the 19-1484 appeal, Polaris filed an amended notice
`of appeal indicating it was challenging the denial of the mo-
`tion to terminate. We ordered supplemental briefing on
`this issue. The parties complied.
`In the 19-1483 appeal, on March 23, 2022, Polaris filed
`a motion for this court to vacate the Board’s final written
`decision and remand for termination. This motion is sub-
`stantively the same as Polaris’s supplemental briefing in
`the 19-1484 appeal. The PTO responded to the motion in
`April 2022, and Polaris replied in May 2022.
`We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
`DISCUSSION
`Polaris raises three principal arguments on appeal.
`First, it argues that the Board erred by failing to grant the
`joint motions to terminate filed in both proceedings before
`the Board on remand. Second, it argues that the Board
`misconstrued the term “memory chip” in the IPR involving
`the ’993 patent. Third, it argues the Board misconstrued
`the term “resource tag buffer” in the IPR involving the
`’505 patent. We affirm.
`The motion-to-terminate issue ultimately turns on in-
`terpretation of 35 U.S.C § 317—which governs settlement
`of IPRs at the Board—and is therefore a question of law
`that we review de novo. VirnetX Inc. v. Apple Inc., 931 F.3d
`1363, 1369 (Fed. Cir. 2019). We also “set aside actions of
`the Board that are arbitrary, capricious, an abuse of dis-
`cretion, or otherwise not in accordance with law.” In re
`Sullivan, 362 F.3d 1324, 1326, 1328 (Fed. Cir. 2004);
`5 U.S.C. § 706(2)(A).
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`11
`
`The Board’s ultimate claim constructions and any un-
`derlying determinations based on intrinsic evidence like-
`wise present a question of law that we review de novo.
`Personalized Media Commc’ns, LLC v. Apple Inc., 952 F.3d
`1336, 1339 (Fed. Cir. 2020). We review for substantial ev-
`idence any subsidiary factual findings involving extrinsic
`evidence. Id.
`The broadest reasonable interpretation claim construc-
`tion standard applies in this IPR proceeding.3 Thus, the
`Board’s interpretation must be reasonable in light of the
`specification, prosecution history, and the understanding
`of one skilled in the art. See Microsoft Corp. v. Proxyconn,
`Inc., 789 F.3d 1292, 1298 (Fed. Cir. 2015), overruled on
`other grounds by Aqua Prods., Inc. v. Matal, 872 F.3d 1290
`(Fed. Cir. 2017) (en banc). The broadest reasonable inter-
`pretation must also take into account “the context of the
`entire patent.” Realtime Data, LLC v. Iancu, 912 F.3d
`1368, 1374 (Fed. Cir. 2019) (quoting Phillips, 415 F.3d
`at 1312–13); see also In re Translogic Tech., Inc., 504 F.3d
`1249, 1256–58 (Fed. Cir. 2007) (applying Phillips “best
`practices” to claim construction under broadest reasonable
`interpretation standard).
`
`
`3 Per regulation, the Board applies the Phillips claim
`construction standard to IPR petitions filed on or after No-
`vember 13, 2018. See Changes to the Claim Construction
`Standard for Interpreting Claims in Trial Proceedings Be-
`fore the Patent Trial and Appeal Board, 83 Fed. Reg.
`51,340 (Oct. 11, 2018) (codified at 37 C.F.R. § 42.100(b));
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005). Be-
`cause NVIDIA filed the petitions before November 13,
`2018, the broadest reasonable interpretation standard ap-
`plies to the IPR decisions on appeal.
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`I
`We first address Polaris’s argument that the Board
`erred in denying its motion to terminate. As explained in
`detail below, because the Board decided the merits of the
`IPR before Polaris filed its motion to terminate, Polaris’s
`motion was untimely. Furthermore, the Board properly ex-
`ercised its discretion to terminate or continue the IPR pro-
`ceeding. We thus affirm.4
`Section 317 of Title 35 governs settlement of IPRs at
`the Board. Section 317(a) is reproduced in full below:
`An inter partes review instituted under this chap-
`ter shall be terminated with respect to any peti-
`tioner upon the joint request of the petitioner and
`the patent owner, unless the Office has decided the
`merits of the proceeding before the request for ter-
`mination is filed. If the inter partes review is ter-
`minated with respect to a petitioner under this
`section, no estoppel under section 315(e) shall at-
`tach to the petitioner, or to the real party in inter-
`est or privy of the petitioner, on the basis of that
`petitioner’s institution of that inter partes review.
`If no petitioner remains in the inter partes review,
`the Office may terminate the review or proceed to
`a final written decision under section 318(a).
`Id. (emphases added). Section 317(a) includes a mandate
`with a time limit (“shall be terminated”) and a separate
`discretionary authority (“may terminate the review or pro-
`ceed”). It specifies that the proceeding “shall be terminated
`with respect to any petitioner” upon joint request of the
`parties. Id. This termination of a petitioner is only
`
`In the 19-1483 appeal, Polaris filed a motion to va-
`4
`cate the Board’s final written decision. 19-1483 ECF
`No. 89. We deny that motion for the same reasons dis-
`cussed herein with respect to the 19-1484 appeal.
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`13
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`mandatory so long as the request for termination is filed
`before “the Office has decided the merits of the proceeding.”
`Id. The termination of petitioners notwithstanding, the
`statute grants discretion to the Board to “proceed to a final
`written decision under section 318(a)” even if “no petitioner
`remains” in the proceeding. Id.; see also, e.g., Aqua Prods.,
`872 F.3d at 1311 (“The final sentence of § 317(a) gives the
`Board the option to proceed to final judgment in any pro-
`ceeding where the original petitioners choose not to con-
`tinue their challenge.”); Regents of the Univ. of Minn.
`v. LSI Corp., 926 F.3d 1327, 1336 (Fed. Cir. 2019) (“The
`statutory provision [§ 317(a)] states that if the petitioner
`stops participating, the Board may continue on to a final
`written decision.”).
`On appeal, Polaris argues that it was entitled to termi-
`nation of both IPR proceedings because it timely filed its
`joint motions to terminate. 19-1484 Appellant’s Suppl.
`Br. 11–17. We disagree for two independent reasons.
`First, the statute provides no mandatory right to termina-
`tion of the proceeding; at best, the statute provides for man-
`datory termination with respect to a petitioner, not
`termination of the proceeding itself. As regards termina-
`tion of the proceeding, § 317(a) states that the Board “may
`terminate the review” if, as is the case here, no petitioner
`remains in the proceeding. Thus, the plain language of the
`statute gives the Board discretion to carry on to a final
`written decision—even without any petitioner.
`Second, the Board correctly identified Polaris’s motion
`as untimely. The Board issued its final written decisions
`in these cases in December 2018. Polaris filed its joint mo-
`tions to terminate more than a year later, in June 2020.
`Thus, the Board had already “decided the merits” at the
`time Polaris filed its motion. Chief Administrative Judge
`Boalick recognized the timing issue in his order on remand,
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`which effectively denied the motions to terminate.5 There,
`he explained that the “Board’s final written decision in
`each of these cases is not vacated, and it is not necessary
`for the Board to issue a new final written decision in either
`of these cases.” 19-1484 SAppx. 27; 19-1483 SAppx. 26.
`Accordingly, the Board determined that the proper course
`was not to terminate the proceedings, as Polaris urged, but
`instead to allow Polaris to seek Director review. Id.
`Although the final written decisions had been vacated
`for a time period after our decision in Arthrex I, that vaca-
`tur itself was vacated by the Supreme Court. This explains
`why Chief Administrative Judge Boalick’s order noted that
`the decisions were not vacated at the time the Board was
`considering the motions to terminate. We thus affirm the
`Board’s decision not to terminate the proceedings under
`§ 317(a) because the motions to terminate were untimely.
`Polaris also argues that the Board’s decision not to ter-
`minate was arbitrary because the Board terminated other
`proceedings with similar Arthrex remands, noting that the
`motions to terminate in those other proceedings were filed
`around the same time Polaris filed its motions. 19-1484
`Appellant’s Suppl. Br. 17–24 (citing Samsung Elecs. Am.,
`Inc. v. Uniloc 2017, LLC, No. IPR2017-01797, Paper 39
`(P.T.A.B. July 21, 2020); Fidelity Info. Servs., LLC v. Mir-
`ror Imaging, LLC, No. CBM2017-00061, Paper 70
`(P.T.A.B. July 21, 2020); Samsung Elecs. Co. v. Image Pro-
`cessing Techs. LLC, No. IPR2017-00353, Paper 45
`(P.T.A.B. Sept. 9, 2020)). Polaris argues that the disparate
`treatment it received was impermissible under the Admin-
`istrative Procedure Act’s requirement for reviewing courts
`to set aside agency action that is “arbitrary, capricious, an
`
`5 At oral argument, Polaris agreed this order was an
`“effective denial” of its motion to terminate. 19-1484 Oral
`Arg. at 3:57–4:50, https://oralarguments.cafc.uscourts.gov/
`default.aspx?fl=19-1484_08012022.mp3.
`
`

`

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`POLARIS INNOVATIONS LIMITED v. BRENT
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`15
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`abuse of discretion, or otherwise not in accordance with
`law.” 19-1484 Appellant’s Suppl. Br. 9 (quoting 5 U.S.C.
`§ 706(2)(A)).
`The Board’s decision denying termination was not ar-
`bitrary and instead rested on a significant difference be-
`tween those cases and Polaris’s. In those cases, the Board
`considered the motion and terminated the proceedings
`while the final written decisions stood vacated by our court
`after the mandate issued in Arthrex I. Here, our vacatur
`pursuant to Arthrex I had already been vacated by the Su-
`preme Court at the time the Board was evaluating Polaris’s
`motions.
`At its core, Polaris’s complaint is not that the cases are
`indistinguishable, but instead that the Board took too long
`to act in its case. See, e.g., 19-1484 Appellant’s Supp.
`Br. 14–15 (arguing “the Board should have granted the
`[motion to terminate] promptly after it was filed” and “the
`fact that the Board sat on the [motion to terminate] for over
`a year should not be held against Polaris”). Polaris, how-
`ever, points to no authority mandating that the Board act
`on its request within any particular time frame.6 The dis-
`parity in timing—the Board taking longer to act on Pola-
`ris’s motions than Polaris thinks it should have—is not the
`sort of arbitrariness in decision-making that § 706(2)(A)’s
`“arbitrary [and] capricious” standard was designed to pro-
`tect against. Even if the disparate result could be viewed
`as “arbitrary,” in the broader sense of the word, based on
`
`6 For the first time at oral argument, Polaris con-
`tended that the Board should have acted on its motion ear-
`lier pursuant to 5 U.S.C. § 706(1), which permits a
`reviewing court to “compel agency action unlawfully with-
`held or unreasonably delayed.” See 19-1484 Oral Arg.
`at 7:51–8:34. This argument was not included in its briefs
`and is therefore waived. See ABS Glob., Inc. v. Cyto-
`nome/ST, LLC, 984 F.3d 1017, 1027 (Fed. Cir. 2021).
`
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`Case: 19-1483 Document: 121 Page: 16 Filed: 09/15/2022
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`16
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`POLARIS INNOVATIONS LIMITED v. BRENT
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`the timing of the Supreme Court’s action in this case while
`Polaris’s motion was still pending, the denial was not the
`product of arbitrary decision-making by the agency. In ad-
`dition, we simply cannot agree that the Board’s decisions
`to continue these IPRs were arbitrary when the last sen-
`tence of § 317(a) gives the Board discretion to either “ter-
`minate the review or proceed to a final written decision.”
`In sum, the Board had already decided the merits of
`the cases in final written decisions that were not vacated
`at the time the Board made its decision denying Polaris’s
`motions to terminate. This determination was not arbi-
`trary. We thus affirm the Board’s decision that termina-
`tion was inappropriate.
`
`II
`Next, we turn to Polaris’s argument that the Board
`misconstrued the claim terms “memory chips” and “semi-
`conductor memory component” within the claim phrase
`“wherein the semiconductor memory component comprises
`a plurality of memory chips” in claim 2 of the ’993 patent.
`We disagree.
`Polaris makes these claim construction arguments to
`avoid the asserted prior art. In its IPR petition, NVIDIA
`presented prior art that included multiple, separately
`packaged integrated circuit dies (such as that illustrated
`below) that NVIDIA argued collectively constituted a “sem-
`iconductor memory component” that “comprises a plurality
`of memory chips” as required by claim 2. ’993 patent col. 11
`ll. 39–40; see, e.g., 19-1484 J.A. 178–79, 208.
`
`

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`Case: 19-1483 Document: 121 Page: 17 Filed: 09/15/2022
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`POLARIS INNOVATIONS LIMITED v. BRENT
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`17
`
`4
`
`5
`
`1
`
`30
`
`16
`
`15
`
`14
`
`13
`
`12
`
`11
`
`10
`
`9
`
`FIG. 2
`
`See, e.g., 19-1484 J.A. 1498. The Board agreed that this
`disclosure taught the claimed “semiconductor memory
`component” comprising “a plurality of memory chips.”
`’993 Decision, 2018 WL 6720618, at *17.
`On appeal, Polaris argues (as it did before the Board)
`that the proper construction of “memory chips” and “semi-
`conductor memory component” excludes the above ar-
`rangement
`(that
`is, multiple, separately packaged
`integrated circuit dies) and only contemplates multiple un-
`packaged dies within a single package. See, e.g., 19-1484
`Appellant’s Br. 8 (arguing “NVIDIA could only find single-
`die-in-a-package prior art”); id. at 24 (arguing that “the
`’993 Patent always uses the term ‘semiconductor memory
`component’ or just ‘memory component’ to refer to a pack-
`aged device, and always uses the term ‘memory chip’ to re-
`fer to an IC memory die packaged within a component”);
`id. at 56–57. The Board disagreed with Polaris, refusing to
`limit the broad claim language “memory chips”—which or-
`dinarily encompasses either packaged integrated circuits
`or unpackaged dies—to a particular embodiment in the
`specification. ’993 Decision, 2018 WL 6720618, at *6 (citing
`Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362,
`1366 (Fed. Cir. 2012) (“It is not enough for a patentee to
`simply disclose a single embodiment or use a word in the
`same manner in all embodiments[;] the patentee must
`‘clearly express an intent’ to redefine the term.”)). Because
`Polaris points to no persuasive evidence supporting its
`
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`Case: 19-1483 Document: 121 Page: 18 Filed: 09/15/2022
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`18
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`POLARIS INNOVATIONS LIMITED v. BRENT
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`proposed claim constructions, we adopt the Board’s con-
`structions and affirm its unpatentability determination.
`Polaris conceded before the Board (as it should have)
`that the term “memory chip” would have been understood
`by a person of ordinary skill as either a packaged inte-
`grated circuit or an unpackaged integrated circuit die. 19-
`1484 J.A. 383 (Patent Owner’s Response) (quoting 19-1484
`J.A. 1525–26 (Przybylski Decl. ¶ 48)). Thus, as the Board
`correctly recognized, Polaris must find support in the in-
`trinsic record to limit the broad claim language only to the
`latter option. See Thorner, 669 F.3d at 1365 (explaining
`that there “are only two exceptions” to the general rule that
`terms are given their “ordinary and customary meaning as
`understood by a person of ordinary skill in the art when
`read in the context of the specification and prosecution his-
`tory”—lexicography and disavowal). Our examination of
`the intrinsic record establishes that Polaris has not done
`so.
`First, the plain claim language does not support Pola-
`ris’s interpretation. Claim 2 simply recites that the “semi-
`conductor memory component comprises a plurality of
`memory chips.” ’993 patent col. 11 ll. 39–40. The claim
`makes no mention of particular packaging required (or for-
`bidden) and does not use the term “die.”
`The specification likewise does not equate the term
`“die” with a memory chip or describe the memory chip in
`terms of its packaging (or lack thereof). Polaris points to
`very little in the specification to support its narrow con-
`struction. It relies exclusively on Figures 1 and 2A, and
`their corresponding descriptions in the specification, which
`it describes as “the only relevant disclosure,” 19-1484 Ap-
`pellant’s Br. 38:
`
`

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`Case: 19-1483 Document: 121 Page: 19 Filed: 09/15/2022
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`POLARIS INNOVATIONS LIMITED v. BRENT
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`19
`
`FIG 2A
`
`'- HB SEMICO DUCTOR
`MEMORY CO PONEIIT
`
`
`
`Id. (annotating ’993 patent, Figs. 1 & 2A).
`Finally, the prosecution history does not support Pola-
`ris’s construction. As the Board noted—and Polaris does
`not contest on appeal—the first office action was a notice of
`allowability. ’993 Decision, 2018 WL 6720618, at *5. Thus,
`there was no amendment nor argument to support Pola-
`ris’s narrow construction.
`On appeal, Polaris makes several arguments. None are
`persuasive.
`First, Polaris argues that “memory chip” means “either
`an [integrated circuit] die or a packaged [integrated circuit]
`. . . not both.” 19-1484 Appellant’s Br. 27. But the Board
`did not conclude that “memory chip” must be “both” a pack-
`aged and an unpackaged die; it simply concluded, based on
`Polaris’s concession, that the term “memory chip” broadly
`encompasses either. In Polaris’s own words: “In general,
`the term ‘chip’ can ‘refer to either a packaged integrated
`circuit or a single die.’” 19-1484 J.A. 383 (Patent Owner’s
`Response) (quoting J.A. 1525 (Przybylski Decl. ¶ 48));
`’993 D