Case: 20-2008 Document: 93 Page: 1 Filed: 03/08/2022
`
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`BROADCOM CORPORATION,
`Appellant
`
`v.
`
`INTERNATIONAL TRADE COMMISSION,
`Appellee
`
`RENESAS ELECTRONICS CORPORATION,
`RENESAS ELECTRONICS AMERICA, INC.,
`PIONEER CORPORATION, PIONEER
`AUTOMOTIVE TECHNOLOGIES, INC., TOYOTA
`MOTOR CORPORATION, TOYOTA MOTOR NORTH
`AMERICA, INC., TOYOTA MOTOR SALES, U.S.A.,
`INC., TOYOTA MOTOR ENGINEERING &
`MANUFACTURING NORTH AMERICA, INC.,
`TOYOTA MOTOR MANUFACTURING, INDIANA,
`INC., TOYOTA MOTOR MANUFACTURING
`KENTUCKY, INC., TOYOTA MOTOR
`MANUFACTURING, MISSISSIPPI, INC., TOYOTA
`MOTOR MANUFACTURING TEXAS, INC.,
`PANASONIC CORPORATION, PANASONIC
`CORPORATION OF NORTH AMERICA, DENSO
`TEN LIMITED, DENSO TEN AMERICA LIMITED,
`DENSO CORPORATION, DENSO INTERNATIONAL
`AMERICA, INC., DENSO MANUFACTURING
`TENNESSEE, INC., DENSO WIRELESS SYSTEMS
`AMERICA, INC.,
`Intervenors
`______________________
`
`2020-2008
`
`

`

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`
`2
`
`BROADCOM CORPORATION v. ITC
`
`______________________
`
`Appeal from the United States International Trade
`Commission in Investigation No. 337-TA-1119.
`
`
`-----------------------------------------------------
`
`
`
`
`
`RENESAS ELECTRONICS CORPORATION,
`Appellant
`
`v.
`
`BROADCOM CORPORATION,
`Cross-Appellant
`______________________
`
`2021-1260, 2021-1362
`______________________
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2019-
`01039.
`
`
`---------------------------------------------------
`
`BROADCOM CORPORATION,
`Appellant
`
`v.
`
`RENESAS ELECTRONICS CORPORATION,
`Appellee
`______________________
`
`2021-1511
`______________________
`
`
`

`

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`BROADCOM CORPORATION v. ITC
`
`3
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2019-
`01041.
`
`
`______________________
`
`Decided: March 8, 2022
`______________________
`
`BRIAN JOHNSON, Steptoe & Johnson LLP, Washington,
`DC, argued for Broadcom Corporation in Appeal Nos. 2020-
`2008 and 2021-1260. Also argued by THOMAS CRAIG
`YEBEMETSKY in Appeal No. 2021-1511. Also represented by
`JOHN CARACAPPA. Also represented by MATTHEW BATHON,
`KATHERINE DOROTHY CAPPAERT, CHRISTOPHER ALAN
`SUAREZ in Appeal Nos. 2020-2008 and 2021-1260.
`
` LYNDE FAUN HERZBACH, Office of the General Counsel,
`United States International Trade Commission, Washing-
`ton, DC, argued for appellee. Also represented by DOMINIC
`L. BIANCHI, WAYNE W. HERRINGTON, SIDNEY A.
`ROSENZWEIG.
`
` BRIAN ROBERT MATSUI, Morrison & Foerster LLP,
`Washington, DC, argued for Renesas Electronics Corpora-
`tion in Appeal Nos. 2020-2008 and 2021-1511, Renesas
`Electronics America, Inc. and all intervenors. Renesas
`Electronics America, Inc. also represented by GEORGE
`BRIAN BUSEY, SETH W. LLOYD, DANIEL P. MUINO, FAHD H.
`PATEL, MARY PRENDERGAST, MARK L. WHITAKER.
`
` SETH W. LLOYD, Morrison & Foerster LLP, Washing-
`ton, DC, also argued for Renesas Electronics Corporation,
`in Appeal No. 2021-1260. Also represented by JONATHAN
`BOCKMAN in Appeal No. 21-1260; GEORGE BRIAN BUSEY,
`MARK L. WHITAKER in Appeal Nos. 2020-2008; FAHD H.
`PATEL, in Appeal Nos. 2020-2008, 2021-1260; MARY
`PRENDERGAST, in Appeal Nos. 2020-2008, 2021-1511;
`
`

`

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`4
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`BROADCOM CORPORATION v. ITC
`
`DANIEL P. MUINO.
`
` LORA A. BRZEZYNSKI, Faegre Drinker Biddle & Reath
`LLP, Washington, DC, for intervenors Pioneer Corpora-
`tion, Pioneer Automotive Technologies, Inc. Also repre-
`sented by NIKOLA COLIC, BRIANNA LYNN SILVERSTEIN, JOHN
`GERARD SMITH.
`
` AARON GABRIEL FOUNTAIN, DLA Piper LLP (US), Aus-
`tin, TX, for intervenors Toyota Motor Corporation, Toyota
`Motor North America, Inc., Toyota Motor Sales, U.S.A.,
`Inc., Toyota Motor Engineering & Manufacturing North
`America, Inc., Toyota Motor Manufacturing, Indiana, Inc.,
`Toyota Motor Manufacturing Kentucky, Inc., Toyota Motor
`Manufacturing, Mississippi, Inc., Toyota Motor Manufac-
`turing Texas, Inc., Panasonic Corporation, Panasonic Cor-
`poration of North America, DENSO TEN Limited, DENSO
`TEN America Limited, Denso Corporation, DENSO Inter-
`national America, Inc., DENSO Manufacturing Tennessee,
`Inc., DENSO Wireless Systems America, Inc. Also repre-
`sented by MATTHEW D. SATCHWELL, PAUL RICHARD
`STEADMAN, Chicago, IL.
` ______________________
`
`Before LOURIE, HUGHES, and STOLL, Circuit Judges.
`LOURIE, Circuit Judge.
`Broadcom Corporation (“Broadcom”) filed a complaint
`at the International Trade Commission (“the Commission”)
`alleging a violation of 19 U.S.C. § 1337 (“Section 337”)
`based on the importation of products by Renesas Electron-
`ics Corporation (“Renesas”) and other companies that are
`asserted to infringe U.S. Patents 7,437,583 (the “’583 pa-
`tent”) and 7,512,752 (the “’752 patent”). In a final initial
`determination, the administrative law judge (“the ALJ”)
`held that Broadcom failed to demonstrate a violation of
`Section 337 with respect to the ’583 patent because it failed
`to satisfy the technical prong of the domestic industry
`
`

`

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`BROADCOM CORPORATION v. ITC
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`5
`
`requirement and because there was no infringement of
`claim 25. For the ’752 patent, the ALJ held that claim 5
`would have been unpatentable as obvious over certain
`prior art. The parties then filed petitions seeking Commis-
`sion review, and the Commission affirmed the relevant por-
`tions of the
`final
`initial determination.
` Certain
`Infotainment Sys., Components Thereof, and Auto. Con-
`taining the Same, Inv. No. 337-TA-1119 (May 28, 2020) (Fi-
`nal) (“Decision I”).
`Broadcom appeals (in the 20-2008 appeal) the Commis-
`sion’s holding that there was no violation of Section 337
`with respect to the ’583 patent, and that claim 5 of the ’752
`patent would have been unpatentable as obvious at the
`time of the alleged invention.
`Renesas also petitioned for inter partes review of the
`’583 and ’752 patents. In two decisions, the United States
`Patent and Trademark Office Patent Trial and Appeal
`Board (“the Board”) held that claims 25 and 26 of the ’583
`patent and claims 1, 2, 5, 7, and 8 of the ’752 patent would
`have been obvious over the prior art1 but that Renesas
`failed to demonstrate by a preponderance of the evidence
`that claims 17 and 18 and 20–24 of the ’583 patent would
`have been obvious.2 See Renesas Elecs. Corp. v. Broadcom
`Corp., No. IPR2019-01039, 2020 WL 6380139 (P.T.A.B.
`Oct. 30, 2020) (“Decision II”); Renesas Elecs. Corp. v.
`
`1 Because the challenged claims of the ’583 and ’752
`patents have an effective filing date before March 16, 2013,
`we apply the version of 35 U.S.C. § 103 in effect before the
`adoption of the Leahy-Smith America Invents Act, Pub. L.
`No. 112-29, 125 Stat. 284 (2011).
`2 The Board and Commission decisions refer to what
`“is” obvious. Because § 103 addresses what “would have
`been” obvious, we recommend usage of the statutory lan-
`guage that looks back to the past in order to avoid the ap-
`pearance of hindsight bias.
`
`

`

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`6
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`BROADCOM CORPORATION v. ITC
`
`Broadcom Corp., No. IPR2019-01041, 2020 WL 6389949
`(P.T.A.B. Oct. 30, 2020) (“Decision III”).
`Renesas appeals (in the 21-1260 appeal) the Board’s
`holding that it failed to demonstrate unpatentability of
`claims 17 and 18 and 20–24 of the ’583 patent. Broadcom
`cross-appeals the Board’s holding that claims 25 and 26 of
`the ’583 patent would have been obvious. In addition,
`Broadcom appeals (in the 21-1511 appeal) the Board’s hold-
`ing that claims 1, 2, 5, 7, and 8 of the ’752 patent would
`have been obvious.
`We have consolidated these appeals because of the
`overlap in subject matter and legal arguments. For the
`reasons detailed below, we affirm Decision II and Decision
`III in their entirety, affirm the portion of Decision I holding
`that there was no Section 337 violation because Broadcom
`failed to show the existence of a domestic industry, and find
`the remainder of Decision I moot in light of our affirmance
`of the Commission’s holding of lack of a Section 337 viola-
`tion and our affirmance of the Board’s determination of ob-
`viousness of claim 5 of the ’752 patent.
`BACKGROUND
`Broadcom owns the ’583 and ’752 patents. The ’583 pa-
`tent is directed to reducing power consumption in computer
`systems by “gating” clock signals with circuit elements to
`turn the signals ON and OFF for downstream parts of the
`circuit. The ’752 patent is directed to a memory access unit
`that improves upon conventional methods of requesting
`data located at different addresses within a shared
`memory.
`A chart showing the claims that the Board and Com-
`mission addressed in each decision is shown below.
`
`Decision
`
`Source
`
`Patent
`
`Claim(s)
`
`Decision I
`
`ITC
`
`’583
`
`17–18, 25–26
`
`

`

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`BROADCOM CORPORATION v. ITC
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`7
`
`Decision II
`
`PTAB
`
`Decision III
`
`PTAB
`
`’752
`
`’583
`
`’752
`
`1, 2, 5, 7, 8
`
`17–18, 20–24,
`25–26
`
`1, 2, 5, 7, 8
`
`In this consolidated opinion we will review the under-
`
`lying decisions by patent and claim rather than by deci-
`sion number.
`
`I. The ’583 Patent
`Claims 17 and 25 of the ’583 patent are the two inde-
`pendent claims in this patent at issue. Claims 18 and 20–
`24 depend directly from claim 17, and claim 26 depends di-
`rectly from claim 25. Claim 17 requires software control of
`a clock gate. Claim 25 requires a hybrid of hardware and
`software control in which the software overwrites the sta-
`tus of a gate set by the hardware. Claims 17 and 25 are
`reproduced below.
`17. A system for distributing clock signals within
`an electronic device, the system comprising:
`[a] at least one processor that determines a status
`of at least one gate that controls flow of a clock sig-
`nal to at least one device coupled to said at least
`one gate; and
`[b] said at least one processor controls said at least
`one gate based on said determined status.
`’583 patent at col. 7 l. 38–col. 8 l. 2.
`25. A system for distributing clock signals within
`an electronic device, the system comprising:
`[a] a clock tree having a plurality of gates;
`
`

`

`Case: 20-2008 Document: 93 Page: 8 Filed: 03/08/2022
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`8
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`BROADCOM CORPORATION v. ITC
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`[b] a hardware control logic block coupled to said
`clock tree that controls at least a portion of said
`plurality of gates;
`[c] at least one register that is controlled by a clock
`tree driver; and
`[d] at least one processor that overwrites a status
`of at least a portion of said plurality of gates which
`is controlled by said hardware control logic block.
`Id. at col. 8 ll. 27–37.
`At the Commission, Broadcom alleged a violation of
`Section 337 based on the importation of products by
`Renesas and other companies that it asserts infringe
`claims 17 and 18 and 25 and 26. Each of the accused in-
`fringers was a respondent in the Commission investigation
`and most have intervened in support of the Commission in
`this appeal.
`In the final initial determination, the ALJ held that
`Broadcom failed to demonstrate that its system-on-a-chip
`(“SoC”) satisfied the technical prong of the domestic indus-
`try requirement in Section 337 because the SoC did not in-
`clude a “clock tree driver,” which is a limitation of the
`asserted claims. J.A. 46. The ALJ also held that Broadcom
`failed to demonstrate infringement of claims 25 and 26 be-
`cause it “could not identify any specific source code in the
`accused product where [the claimed] sequence of events ‘ac-
`tually happened.’” J.A. 96. The Commission affirmed both
`holdings.
`At the Board, Renesas alleged (1) that claims 17 and 18
`and 20–24 would have been obvious over Kiuchi,3 and Van
`
`
`3 Kiuchi et al., J.P. Patent Pub. H8-255034.
`
`

`

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`BROADCOM CORPORATION v. ITC
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`9
`
`Hook;4 and (2) that claims 25 and 26 would have been ob-
`vious over Alben,5 Fallah,6 and Benini.7
`Kiuchi describes a system that controls clock gates and
`discloses a device with multiple clock gate circuits used to
`control the flow of clock signals. Van Hook is directed to a
`high-performance, low-cost video game system and dis-
`closes a system with a main processor that halts a signal
`processor via a status register. Alben discloses a technique
`for hardware-controlled clock gating and includes hard-
`ware logic capable of turning clock gates ON and OFF. Fal-
`lah is a textbook chapter that discusses system-level
`distributed power management, which relates to high-level
`workload prediction algorithms, and circuit-level power
`management, such as clock gating that can be used to man-
`age individual devices. Lastly, Benini is a scientific article
`that teaches system-level power management and hard-
`ware-controlled clock gating.
`The Board found that Kiuchi discloses all structural el-
`ements of claim 17 and that Van Hook discloses a main
`processor that halts a signal processor. However, because
`Van Hook does not teach conditionally controlling clock
`gates, the Board held that claims 17 and 18 and 20–24
`would not have been obvious. The Board then found claims
`25 and 26 obvious over the combination of Alben and Fal-
`lah. It stated that Alben could be modified, in view of Fal-
`lah’s teaching, to use software to directly control a gate to
`override the power management decisions made by a con-
`trol unit. This would directly overwrite a status of OFF or
`
`4 Van Hook et al., U.S. Patent 6,593,929.
`5 Alben et al., U.S. Patent 6,938,176.
`6 Fallah et al., Chapter 13: Circuit and System Level
`Power Management, Kluwer Academic Publishers (2002).
`7 Benini et al., A Survey of Design Techniques for
`System-Level Dynamic Power Management, 8 IEEE Trans-
`actions on Very Large Scale Integration Systems 3 (2000).
`
`

`

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`10
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`BROADCOM CORPORATION v. ITC
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`ON that was previously written by the control unit. The
`Board added that Benini provides a motivation to combine
`the references by discussing the advantages in power man-
`agement from migrating the power manager software.
`Broadcom appealed the Commission’s decision to this
`court. Renesas appealed and Broadcom cross-appealed the
`Board’s decision. We have jurisdiction pursuant to
`28 U.S.C. §§ 1295(a)(4)(A) and 1295(a)(6).
`II. The ’752 Patent
`Independent claim 1, and dependent claims 2, 5, 7, and
`8 of the ’752 patent, are at issue in these appeals. Claims
`1, 2, and 5 are reproduced below.
`1. A memory access unit for accessing data for a
`module, said memory access unit comprising:
`an output port for providing access requests for
`lists of addresses in a memory over a link to a
`memory controller; and
`a queue for queuing the access requests for the lists
`of addresses.
`’752 patent at col. 8 ll. 61–67.
`2. The memory access unit of claim 1, further com-
`prising:
`an input port for receiving requests for blocks of
`pixels from a motion prediction processing unit;
`and
`logic for generating the lists of addresses from the
`requests for blocks of pixels, wherein the lists of ad-
`dresses correspond to addresses in a memory that
`store pixels in the blocks of pixels.
`Id. at col. 9 ll. 1–7.
`5. The memory access unit of claim 2, wherein the
`logic generates the access requests based on the list
`
`

`

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`BROADCOM CORPORATION v. ITC
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`11
`
`of addresses and based on sizes of each of the re-
`quests for blocks of pixels from the motion predic-
`tion processing unit.
`Id. at col. 9 ll. 17–20.
`At the Commission, Broadcom alleged a violation of
`Section 337 based on the importation of products by
`Renesas and other companies that, in relevant part, in-
`fringed claim 5. Respondents contended that claim 5 was
`either anticipated by Foster8 or would have been obvious
`over Foster and Sih.9
`Foster describes a system for maximizing memory ac-
`cess efficiency. Foster’s system receives requests for
`memory access from various system components, deter-
`mines where the corresponding data are located, and pro-
`cesses and reorders the requests efficiently. Sih is directed
`to a memory access unit’s controller suited for video appli-
`cations. The controller receives access commands for spec-
`ifying blocks of video data and may copy at least one block
`of video data from the video memory.
`In the final initial determination, the ALJ held that
`claim 5 was unpatentable as obvious over Sih in combina-
`tion with Foster. Specifically, the ALJ held that Sih’s dis-
`closure of video block width and length in combination with
`Foster’s disclosure of a memory access unit that receives
`requests from a motion prediction processing unit rendered
`the claim obvious. The Commission affirmed the final ini-
`tial determination.
`
`At the Board, Renesas alleged, in relevant part, that
`claims 1, 2, 5, 7, and 8 would have been obvious based on
`Foster alone, or in combination with Sih.
`
`
`8 Foster et al., U.S. Patent 6,240,492.
`9 Sih et al., U.S. Patent Pub. 2003/0106053 A1.
`
`

`

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`12
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`BROADCOM CORPORATION v. ITC
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`Regarding claim 1, the Board found that Foster dis-
`
`closed an output port and a queue as part of a memory ac-
`cess unit. The Board went on to find that these two
`elements could be combined to render claim 1 obvious.
`For claim 2, the parties’ arguments largely focused on
`the requirement for “an input port for receiving requests
`for blocks of pixels.” The Board found that Foster disclosed
`a memory interface that received requests for “blocks of
`data” that a motion compensation unit needed. Decision
`III at *7. It then found that a block of data was equivalent
`to a block of pixels. In the alternative, the Board found that
`Foster disclosed an input port for receiving requests for
`blocks of pixels based on its disclosure of requesting multi-
`ple lines of pixel data. The Board concluded that combining
`Foster’s disclosures rendered claim 2 obvious.
`Finally, the Board found claim 5 obvious over Foster
`alone. The Board found that Foster disclosed claim 5’s
`functional limitation that logic within the access unit “gen-
`erates the access requests based on the list of addresses
`and based on sizes of each of the requests for blocks of pix-
`els.” The Board next found claim 5 obvious over Foster in
`combination with Sih. It found that Sih disclosed a
`memory access unit that received commands requesting
`blocks of pixels and that those commands included a set of
`block parameters including video block width and length.
`The Board then found that a person of ordinary skill would
`have been motivated to combine Foster and Sih because
`both disclosures relate to memory access for a motion com-
`pensation function required for video encoding and decod-
`ing.
`Broadcom appealed both decisions to this court. We
`have jurisdiction pursuant to 28 U.S.C. §§ 1295(a)(4)(A)
`and 1295(a)(6).
`
`

`

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`BROADCOM CORPORATION v. ITC
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`13
`
`DISCUSSION
`Broadcom asserts that the Commission erred in finding
`no domestic industry for the ’583 patent, in holding no in-
`fringement of claim 25 of the ’583 patent, and in holding
`that claim 5 of the ’752 patent would have been obvious.
`Renesas asserts that the Board erred in holding that claims
`17 and 18 and 20–24 of the ’583 patent would not have been
`obvious. Broadcom asserts, in its cross-appeal, that the
`Board erred in holding that claims 25 and 26 of the ’583
`patent would have been obvious. Lastly, Broadcom asserts
`that the Board erred in holding that claims 1, 2, and 5 of
`the ’752 patent would have been obvious. Claims 7 and 8
`are not addressed. We address the parties’ arguments in
`turn.
`Commission final determinations are reviewed under
`the Administrative Procedure Act. 5 U.S.C. § 706. The
`Commission’s factual findings are reviewed for substantial
`evidence, and legal determinations are reviewed de novo.
`Honeywell Int’l, Inc. v. ITC, 341 F.3d 1332, 1338 (Fed. Cir.
`2003). “Substantial evidence has been defined as more
`than a mere scintilla and as such relevant evidence as a
`reasonable mind might accept as adequate to support a
`conclusion.” Id. (internal quotation marks omitted). The
`court “must affirm a Commission determination if it is rea-
`sonable and supported by the record as a whole, even if
`some evidence detracts from the Commission’s conclusion.”
`Spansion, Inc. v. ITC, 629 F.3d 1331, 1344 (Fed. Cir. 2010).
`We review the Board’s legal determinations de novo, In
`re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the
`Board’s factual findings underlying those determinations
`for substantial evidence, In re Gartside, 203 F.3d 1305,
`1316 (Fed. Cir. 2000). Obviousness is a question of law that
`“lends itself to several basic factual inquiries,” including
`the scope and content of the prior art, the level of ordinary
`skill in the art, and differences between the prior art and
`
`

`

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`14
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`BROADCOM CORPORATION v. ITC
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`the claimed invention. Graham v. John Deere Co., 383 U.S.
`1, 17–18 (1966).
`I. Broadcom’s and Renesas’s Appeals Concerning the ’583
`Patent
`A. The Commission Decision
`The Commission determined that there was no Sec-
`
`tion 337 violation because Broadcom failed to satisfy the
`technical prong of the domestic industry requirement. On
`appeal, Broadcom asserts error in the Commission’s find-
`ings of fact. Reviewing these findings for substantial evi-
`dence, we affirm the Commission’s decision.
`
`To establish a violation of Section 337 a complainant
`must show both infringement and that an industry “relat-
`ing to the articles protected by the patent . . . exists or is in
`the process of being established” in the United States. 19
`U.S.C. § 1337(a)(2), (3). Under Commission precedent, the
`domestic industry requirement consists of an “economic
`prong” and a “technical prong.” See, e.g., Alloc, Inc. v. ITC,
`342 F.3d 1361, 1375 (Fed. Cir. 2003). To meet the technical
`prong, the complainant must establish that it practices at
`least one claim of the asserted patent. This requires a com-
`plainant to identify “actual ‘articles protected by the pa-
`tent.’” Microsoft Corp. v. ITC, 731 F.3d 1354, 1361–62
`(Fed. Cir. 2013) (citing 19 U.S.C. § 1337(a)(2)–(a)(3)). To
`meet the economic prong, the complainant must demon-
`strate that its investment in the protected article is “signif-
`icant” or “substantial.” 19 U.S.C. § 1337(a)(3). The
`economic prong is not at issue in this appeal.
`The ALJ determined that Broadcom identified only its
`SoC as a domestic industry article. However, the ALJ
`found, and Broadcom did not dispute, that the SoC did not
`contain the “clock tree driver” that is required by claim 25;
`it found that the driver must be stored on an external
`memory, separate from the SoC. But Broadcom instead ar-
`gued that it satisfies the technical prong of the domestic
`
`

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`BROADCOM CORPORATION v. ITC
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`15
`
`industry requirement because it collaborates with its cus-
`tomers to integrate its SoC with external memory to enable
`retrieval and execution of the “clock tree driver” firmware.
`However, the ALJ faulted Broadcom for failing to identify
`any specific external memory that contained the “clock tree
`driver,” and noted that an actual article protected by the
`patent is needed to meet the industry requirement.
`The Commission similarly found that Broadcom failed
`to identify any specific integration of the purported domes-
`tic industry SoC and the “clock tree driver” firmware, or a
`specific location where the firmware was stored. The Com-
`mission reasoned that without identifying an actual inte-
`gration of the SoC and “clock tree driver,” Broadcom
`posited only a hypothetical device that did not meet
`claim 25’s limitations and therefore did not satisfy the
`technical prong of the domestic industry requirement. The
`Commission added that Broadcom’s new argument, i.e.,
`that it manufactured and tested a “system” that included
`an SoC and firmware that contained the clock tree driver,
`was waived because Broadcom did not raise this theory in
`the ALJ proceedings.
`We agree with the Commission that Broadcom failed to
`satisfy the technical requirement. We have previously
`found that, in order to meet the technical requirement of
`Section 337, a complainant must “show that there is a do-
`mestic industry product that actually practices” at least
`one claim of the asserted patent. Microsoft, 731 F.3d at
`1361. In Microsoft, the patentee Microsoft supplied a mo-
`bile operating system to its customers. Id. at 1358, 1361.
`Microsoft’s asserted patent dealt with server-client com-
`munications, in which the client application was run on a
`mobile phone manufactured by Microsoft’s customers. Id.
`at 1360–61. Microsoft failed to show, however, that any
`such client applications were actually implemented on any
`third-party mobile device. Id. We therefore found that Mi-
`crosoft did not satisfy the domestic industry requirement.
`
`

`

`Case: 20-2008 Document: 93 Page: 16 Filed: 03/08/2022
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`16
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`BROADCOM CORPORATION v. ITC
`
`Broadcom suffers from substantially the same failure
`of proof here. As in Microsoft, Broadcom failed to identify
`any specific integration of the domestic industry SoC and
`the “clock tree driver” firmware, or a specific location where
`the firmware was stored. Broadcom does not challenge this
`finding, and instead introduces new theories that the Com-
`mission properly deemed waived. Because Broadcom failed
`to identify an actual article that practices claim 25, the
`Commission’s finding that Broadcom failed to satisfy the
`domestic industry requirement of Section 337 was sup-
`ported by substantial evidence.
`In light of our affirmance of the Commission’s finding
`of no domestic industry, the portion of the Commission’s
`decision addressing infringement of claim 25 is moot. We
`thus do not address Broadcom’s appeal from that portion of
`the Commission’s decision.
`B. The Board Decision
`1. Claim 17
`Renesas argues that the Board improperly relied on
`
`Broadcom’s expert’s opinion regarding whether software
`instructions halt a processor when it was undisputed that
`Van Hook describes using hardware registers to halt a pro-
`cessor. Renesas adds that Kiuchi discloses all the struc-
`tural limitations of claim 17—a system with a processor
`that controls clock gates connected to devices. Further,
`Van Hook discloses conditionally halting a circuit compo-
`nent by conditionally gating its clock signal. Renesas
`claims that a skilled artisan would have applied Van Hook
`to implement the functionality in Kiuchi to render claim 17
`obvious.
`
`In addition, Renesas argues that the Board improperly
`truncated its obviousness analysis solely because it found
`a difference between claim 17 and Van Hook. It asserts
`that an obviousness analysis, unlike an anticipation
`
`

`

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`BROADCOM CORPORATION v. ITC
`
`17
`
`analysis, recognizes that there may be differences between
`the claims and prior art.
`
`Broadcom responds that the Board correctly found that
`the combined teachings of Kiuchi and Van Hook would not
`have rendered obvious a “processor that determines a sta-
`tus of at least one [clock] gate.” In addition, Broadcom ar-
`gues that the Board did not truncate its obviousness
`analysis and properly rejected Van Hook as non-analogous
`prior art because it is unrelated to clock gating and power
`management in hardware devices.
` We agree with Broadcom. Neither party disputes that
`Kiuchi does not teach a “processor that determines a status
`of at least one [clock] gate.” For this claim limitation, the
`parties agreed that the term “determines a status of at
`least one gate” should be construed as “determines for at
`least one gate whether said gate is ON or OFF.” J.A. 70.
`Because this limitation is not taught by Kiuchi, it must be
`taught by Van Hook or the combination of Kiuchi and Van
`Hook for there to be obviousness.
`
`The Board began its analysis by determining that a
`skilled artisan’s field of endeavor is “power management
`and processor clock control.” Decision II at *2–3. When the
`Board analyzed Van Hook, it found that the halting dis-
`cussed in this reference did not mean stopping the clock
`gate as required by claim 17. Instead, halting had to do
`with checking or setting a processor’s operational status.
`We agree with the Board’s reasoning that Van Hook does
`not disclose stopping a clock gate. Moreover, even if Van
`Hook did disclose this limitation, Van Hook relates to pro-
`cessor performance, not power management and processor
`clock control, so a skilled artisan would not have been mo-
`tivated to combine Van Hook and Kiuchi. Because the
`Board properly analyzed Van Hook, we do not find that it
`improperly truncated its obviousness analysis and affirm
`its holding of nonobviousness of claim 17 and its dependent
`claims.
`
`

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`18
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`BROADCOM CORPORATION v. ITC
`
`2. Claims 25 and 26
`Broadcom argues that the Board found claim 25 and 26
`
`obvious based on impermissible hindsight. Specifically, it
`asserts that the Board improperly reconstructed claim lim-
`itation 25[d] by modifying Alben to achieve a specific, un-
`disclosed clock-gating
`feature based on a generic
`motivation to combine software power management dis-
`closed in Fallah and Benini. Broadcom adds that the Board
`never addressed why a skilled artisan would have reason-
`ably expected to succeed in combining Alben and Fallah.
`Broadcom also asserts that the Board abused its discretion
`in analyzing Renesas’s waived argument that claim 26
`would have been obvious in view of Alben.
`
`Renesas counters that the Board was thorough in its
`analysis of a motivation to combine Alben and Fallah and
`that claims 25 and 26 were properly found not to be patent-
`able. It adds that the Board properly found that Fallah
`used software to control clock gates directly and discussed
`the tradeoffs between using a power management algo-
`rithm in software versus a power management system in
`hardware. Renesas contends that it did argue that there
`would be a reasonable expectation of success in combining
`the prior art, and, because Broadcom never contested that,
`the Board did not address that issue. In response to Broad-
`com’s claim 26 waiver argument, Renesas points out that
`it asserted that claim 26 would have been obvious in view
`of Alben in its petition and that this argument was never
`abandoned.
` We agree with Renesas. The Board found that Alben
`discloses a system for distributing clock signals that in-
`cludes a “clock tree,” a “hardware control logic block” con-
`nected to the clock tree for controlling clock gates, and a
`“register” controlled by a clock tree driver. Decision II at
`*8–11. Regarding whether Alben combined with Fallah
`discloses programming a processor with software to “over-
`write[] a status of OFF or ON” for a previously hardware-
`
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`BROADCOM CORPORATION v. ITC
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`19
`
`controlled clock gate, the Board found, and substantial ev-
`idence showed that: (1) Alben discloses a hybrid approach
`to power management in which a hardware control unit di-
`rectly controls clock gates and software running on a pro-
`cessor and at least indirectly overwrites clock gates’ status
`to OFF or ON; (2) Fallah teaches that it was well known
`that hardware and software could directly control power
`management, including through clock gating, and de-
`scribes well-known tradeoffs of hardware and software ap-
`proaches; and (3) Fallah and Benini confirm that persons
`of ordinary skill would have seen multiple benefits to add-
`ing direct software control of clock gates to Alben’s hybrid
`system. Id. at *14. The Board’s findings are supported by
`the plain text of these references which discuss clock gating
`for power management and each of the elements of claims
`25 and 26