Case: 22-1421 Document: 90 Page: 1 Filed: 04/08/2024
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`SONOS, INC.,
`Appellant
`
`v.
`
`INTERNATIONAL TRADE COMMISSION,
`Appellee
`
`GOOGLE LLC,
`Intervenor
`
`-------------------------------------------------
`
`GOOGLE LLC,
`Appellant
`
`v.
`
`INTERNATIONAL TRADE COMMISSION,
`Appellee
`
`SONOS, INC.,
`Intervenor
`______________________
`
`2022-1421, 2022-1573
`______________________
`
`Appeals from the United States International Trade
`Commission in Investigation No. 337-TA-1191.
`
`

`

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`2
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`SONOS, INC. v. ITC
`
`______________________
`
`Decided: April 8, 2024
`______________________
`
`E. JOSHUA ROSENKRANZ, Orrick, Herrington & Sutcliffe
`LLP, New York, NY, argued for appellant. Also repre-
`sented by ALEXANDRA BURSAK, EDMUND HIRSCHFELD;
`ALYSSA MARGARET CARIDIS, Los Angeles, CA; ABIGAIL
`COLELLA, JORDAN COYLE, MARK S. DAVIES, ROBERT
`MANHAS, Washington, DC; BAS de BLANK, Menlo Park, CA;
`CLEMENT ROBERTS, San Francisco, CA; GEORGE I. LEE,
`COLE BRADLEY RICHTER, RORY PATRICK SHEA, JOHN DAN
`SMITH, III, SEAN MICHAEL SULLIVAN, Lee Sullivan Shea &
`Smith LLP, Chicago, IL.
`
` DAN L. BAGATELL, Perkins Coie LLP, Hanover, NH, ar-
`gued for cross-appellant. Also represented by ANDREW
`DUFRESNE, Madison, WI; NATHAN K. KELLEY, JONATHAN
`IRVIN TIETZ, Washington, DC; TARA LAUREN KURTIS, Chi-
`cago, IL; THERESA H. NGUYEN, Seattle, WA; JEFFREY
`NARDINELLI, SEAN S. PAK, CHARLES KRAMER VERHOEVEN,
`OGNJEN ZIVOJNOVIC, Quinn Emanuel Urquhart & Sulli-
`van, LLP, San Francisco, CA; JARED WESTON NEWTON,
`Washington, DC; LANCE YANG, Los Angeles, CA.
`
` RICHARD P. HADORN, Office of the General Counsel,
`United States International Trade Commission, Washing-
`ton, DC, argued for appellee. Also represented by WAYNE
`W. HERRINGTON.
` ______________________
`
`Before DYK, REYNA, and STARK, Circuit Judges.
`STARK, Circuit Judge.
`Sonos, Inc. (“Sonos”) filed a complaint at the Interna-
`tional Trade Commission (“Commission”) alleging that
`Google LLC (“Google”) was violating Section 337 of the
`
`

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`SONOS, INC. v. ITC
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`3
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`Tariff Act of 1930, 19 U.S.C. § 1337, by importing audio
`players and controllers that infringed five of Sonos’ pa-
`tents: U.S. Patent Nos. 10,439,896 (“’896 patent”),
`9,195,258
`(“’258 patent”), 9,219,959
`(“’959 patent”),
`10,209,953 (“’953 patent”), and 8,588,949 (“’949 patent”).
`The Commission instituted an investigation and ulti-
`mately issued a final determination, holding that certain
`originally-accused products infringed each of the asserted
`patents. The final determination also held, however, that
`certain non-infringing alternatives (“NIAs” or “redesigns”)
`proposed by Google did not infringe any of the claims of the
`Sonos patents. Sonos timely appealed the Commission’s
`findings of non-infringement by the redesigns, and Google
`cross-appealed the Commission’s findings of infringement
`by the originally-accused products. We affirm.
`I
`On January 7, 2020, Sonos filed a complaint with the
`Commission, alleging violations of Section 337 in the im-
`portation into the United States, the sale for importation,
`and the sale within the United States after importation of
`certain audio players and controllers, components thereof,
`and products containing the same. On February 11, 2020,
`the Commission instituted an investigation based on
`Sonos’ complaint, to determine:
`whether there is a violation of subsection (a)(1)(B)
`of section 337 in the importation into the United
`States, the sale for importation, or the sale within
`the United States after importation of certain
`products . . . by reason of infringement of one or
`more of claims 17, 21-24, and 26 of the ’258 patent;
`claims 7, 12-14, and 22-24 of the ’953 patent;
`claims 1, 2, 4, and 5 of the ’949 patent; claims 5, 9,
`10, 29, and 35 of the ’959 patent; and claims 1, 3,
`5, 6, and 12 of the ’896 patent, and whether an in-
`dustry in the United States exists as required by
`subsection (a)(2) of section 337[.]
`
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`SONOS, INC. v. ITC
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`85 Fed. Reg. 7783 (Feb. 11, 2020). The Commission named
`Alphabet Inc. and Google as respondents, although Alpha-
`bet Inc. was later terminated from the investigation. The
`Commission’s Office of Unfair Import Investigations was
`also named as a party.
`On March 12, 2021, the Commission partially termi-
`nated the investigation after Sonos withdrew allegations of
`infringement as to certain claims in each of the asserted
`patents. The remaining patents and claims at issue at the
`time of the Commission’s evidentiary hearing were as fol-
`lows:
`
`
`
`J.A. 4.
`After the evidentiary hearing, the chief administrative
`law judge (“CALJ”) made an initial determination that
`each of the asserted patents was infringed by one or more
`of the originally-accused Google products. The CALJ also
`found, however, that redesigns of each of these products
`avoided infringement and were, hence, NIAs. J.A. 58-255.
`The Commission declined the parties’ petitions for review
`of the initial determination and issued a final determina-
`tion adopting the CALJ’s determination while also provid-
`ing “supplemental reasoning” as to how Google’s originally-
`
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`SONOS, INC. v. ITC
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`5
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`accused products infringed the ’258 and ’953 patents.1
`J.A. 2, 18-22. The Commission then entered a limited ex-
`clusion order, “precluding the importation of audio players
`and controllers . . . that infringe one or more of [Sonos’]
`claims.” J.A. 23; see also J.A. 37-40.
`Sonos appealed the Commission’s final determination
`finding non-infringement of the ’896 patent, ’258 patent,
`and ’959 patent by Google’s redesigns that were labelled
`’896 NIA 2, ’258 NIA 1, and ’959 NIA 4, respectively.
`Google cross-appealed the Commission’s final determina-
`tion that found infringement of each of the asserted patents
`by certain of the originally-accused products. We have ju-
`risdiction under 28 U.S.C. § 1295(a)(6).
`II
`We review the Commission’s legal determinations de
`novo and its factual findings for substantial evidence. See
`Guangdong Alison Hi-Tech Co. v. Int’l Trade Comm’n, 936
`F.3d 1353, 1358 (Fed. Cir. 2019). In particular, the
`“[d]etermination of the meaning and scope of patent
`claims” is a matter of law reviewed de novo (when based
`entirely on intrinsic evidence) and “[i]nfringement of cor-
`rectly construed claims” is “a question of fact” reviewed for
`substantial evidence. Kinik Co. v. Int’l Trade Comm’n, 362
`F.3d 1359, 1361 (Fed. Cir. 2004). Substantial evidence
`“means such relevant evidence as a reasonable mind might
`accept as adequate to support a conclusion.” Consol. Edi-
`son Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). “[W]here two
`different, inconsistent conclusions may reasonably be
`drawn from the evidence in record, an agency’s decision to
`
`
`1 Because the Commission adopted the CALJ’s ini-
`tial determination in full, we do not distinguish between
`the findings in the CALJ’s initial determination and the
`findings in the Commission’s final determination. We treat
`both as the findings of the Commission.
`
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`SONOS, INC. v. ITC
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`favor one conclusion over the other is the epitome of a de-
`cision that must be sustained upon review for substantial
`evidence.” In re Jolley, 308 F.3d 1317, 1329 (Fed. Cir.
`2002).
`“[W]e review the factual findings underlying the Com-
`mission’s invalidity determinations for ‘substantial evi-
`dence’ by ascertaining whether those findings ‘were
`established by evidence that a reasonable person might
`find clear and convincing,’ and whether those findings
`‘form an adequate predicate for the legal determination of
`invalidity.’” Guangdong, 936 F.3d at 1359 (quoting Check-
`point Sys., Inc. v. U.S. Int’l Trade Comm’n, 54 F.3d 756,
`761 n.5 (Fed. Cir. 1995)).
`
`III
`A
`We first address issues in Sonos’ appeal, which chal-
`lenges the Commission’s findings that certain Google rede-
`signs do not infringe the ’896 patent, ’258 patent, and ’959
`patent. We are not persuaded by Sonos’ contentions that
`the Commission misconstrued disputed claim terms or
`lacked substantial evidence for its findings. Accordingly,
`we affirm.
`
`1
`The ’896 patent is directed to techniques enabling us-
`ers to easily add new smart speakers to an existing home
`network in a way that requires a “minimum of human in-
`tervention and technical ability.” ’896 patent 2:48-50; see
`also id. at 2:16-27, 17:60-18:35. Pertinent to Sonos’ appeal,
`claim 1 of the ’896 patent requires, among other things,
`“transmitting, to the given playback device via the initial
`communication path, at least a second message containing
`network configuration parameters, wherein the network
`configuration parameters comprise an identifier of the se-
`cure WLAN [i.e., wireless local area network] and security
`key for the secure WLAN.” Id. at 18:19-24 (emphasis
`
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`7
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`added). The Commission construed this limitation as re-
`quiring transmission of at least one single “second mes-
`sage” containing both the claimed “identifier” and the
`claimed “security key.” J.A. 304. Because, in Google’s re-
`designed ’896 NIA 2, the identifier and the security key are
`transmitted in two separate messages, the Commission
`found that the redesign does not infringe the ’896 patent.
`J.A. 230-32.
`On appeal, the parties do not dispute that, in ’896 NIA
`2, the identifier and the security key are sent in two differ-
`ent messages. See e.g., Google Br.2 at 11 (“Google’s ’896
`NIA 2 sends the two network configuration parameters in
`separate messages rather than together.”); Sonos Br. at 28.
`Sonos’ challenge on appeal is directed to the Commission’s
`construction of the “transmitting” step as requiring the
`same “second message” to contain both the identifier and
`the security key. Sonos argues the correct construction
`must permit the identifier and security key to be distrib-
`uted among multiple second messages. Specifically, Sonos
`argues the “transmitting” limitation requires at least one
`second message, where the one or more second messages
`collectively contain the identifier and the security key. See
`Sonos Br. at 28-32; J.A. 3624-28 (Sonos proposing limita-
`tion be construed as “one or more additional messages that
`collectively contain an identifier of the secure WLAN and a
`security key for the secure WLAN”) (emphasis added).
`
`
`2 We refer to the various briefs as follows: “Sonos
`Br.” (ECF No. 20) is Sonos’ principal brief; “Google Br.”
`(ECF No. 28) is Google’s principal brief in its cross appeal
`and response brief in Sonos’ appeal; “ITC Br.” (ECF No. 40)
`is the Commission’s response in both the Sonos appeal and
`Google cross-appeal; “Sonos Reply Br.” (ECF No. 42) is
`Sonos’ reply brief in its appeal and response brief in
`Google’s cross appeal; and “Google Reply Br.” (ECF No. 48)
`is Google’s reply brief in its cross-appeal.
`
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`SONOS, INC. v. ITC
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`Google counters, citing both the plain language and the
`specification, that the claim limitation requires “a second
`message containing network configuration parameters,”
`each of which contains both the identifier and the security
`key. In Google’s view, “at least” indicates there can be more
`than one such “second message.3 See Google Br. at 53 (ad-
`vocating for construction where “a ‘second message’ must
`include both recited network configuration parameters
`even though there may be more than one such ‘second mes-
`sage’”).
`Google has the better reading of the claim language,
`and much the better reading of the specification. The claim
`recites network configuration parameters, which are de-
`fined to include both an identifier of the WLAN and a secu-
`rity key. We agree with the CALJ that this language
`“makes clear that ‘at least a second message’ has the net-
`work configuration parameters and that the network con-
`figuration parameters include both” the identifier and the
`security key. J.A. 304 (quoting ’896 patent cl. 1).
`The specification provides strong support for this con-
`struction, and essentially none for Sonos’ proposal. Google
`and the Commission point to the patent’s Figure 3B and
`the patent’s description of it, which both teach a single
`message containing both the identifier and the security
`key. See Google Br. at 54-57; ITC Br. at 18-20; see also ’896
`patent Figure 3B & 14:15-17; J.A. 3699 (Sonos conceding
`that specification describes sending network identifier and
`security key “in a single ‘SetNetParams message’”). Google
`also
`identifies a passage
`in the specification that
`
`
`3 The possibility of more than one “second message,”
`provided that each “second message” contains the identifier
`and the security key, suggests that the “at least” portion of
`the disputed claim term is not superfluous, contrary to
`Sonos’ contention. See Sonos Br. at 34-35.
`
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`contemplates resending a message containing both the
`identifier and the security key. See Google Br. at 56 (citing
`’896 patent Fig. 3B & 13:38-42, 19:5-7). A person of ordi-
`nary skill in the art would view these examples as evidence
`that the patentee understood the claims as involving one
`or more “second message,” where each second message con-
`tains both the identifier and the security key.
`By contrast, Sonos does not identify any passage or fig-
`ure in the specification supporting its proposed construc-
`tion. Sonos merely argues “[n]othing in the specification
`modifies the claim language,” Sonos Br. at 33 (emphasis
`added), but this does not aid its case.
`Rather than the specification, Sonos directs us to prec-
`edent, arguing that in 01 Communique Laboratory, Inc. v.
`LogMeIn, Inc., 687 F.3d 1292 (Fed. Cir. 2012), we con-
`strued claim terms similar to the one at issue here as hav-
`ing their “ordinary meaning.” Sonos Br. at 31. The issue
`in LogMeIn was whether the claim term “a locator server
`computer” encompassed multiple servers and, if so,
`whether the recited functions for the “location facility” soft-
`ware could be distributed among them. While we held
`there that the term “a computer” must be interpreted – as
`a matter of “ordinary meaning” – as “one or more comput-
`ers,” our holding that a “location facility” may be distrib-
`uted among “more than one computer” was based on the
`express disclosure in the specification there, to the effect
`that “‘such facilities can be sub-divided into separate facil-
`ities.’” LogMeIn, 687 F.3d at 1297 (quoting specification);
`see also id. (“[T]he disclosures that facilities may be subdi-
`vided . . . support a construction that the location facility
`may be distributed among multiple physical computers.”).
`Here, however, Sonos does not identify any similar disclo-
`sure in the ’896 patent.
`We do not agree with Sonos that the Commission im-
`properly imported a limitation from the specification into
`the claims. Instead, we agree with the Commission, and
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`SONOS, INC. v. ITC
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`Google, that the claim language and specification support
`the Commission’s construction.4
`Since Sonos does not dispute that the ’896 NIA 2 sends
`the identifier and the security key in separate messages,
`and the proper construction of the “second message” term
`does not encompass such an embodiment, we affirm the
`Commission’s finding that ’896 NIA 2 does not infringe the
`’896 patent.
`
`2
`The ’258 patent is directed to techniques for ensuring
`that multiple wireless speakers play in unison. Pertinent
`to Sonos’ appeal, the patent claims a technique for synchro-
`nizing smart speakers with each other by transmitting
`“clock time information.” ’258 patent 40:14-21. The clock
`time information enables the wireless speakers to adjust
`for sound mismatches resulting from the speakers’ inde-
`pendent internal clocks. At the Commission, Sonos and
`Google agreed that “clock time information” means “infor-
`mation representing a time value indicated by a device’s
`clock,” J.A. 280, a construction the Commission adopted,
`see J.A. 95-96. Based on this agreed-upon construction, the
`Commission found that one of Google’s redesigns, ’258 NIA
`1, does not infringe the ’258 patent because it used an in-
`crementing counter. J.A. 95-97. In the Commission’s view,
`this incrementing counter/integer is not information repre-
`senting a time value and, thus, cannot be the claimed “clock
`time information.” J.A. 95.
`On appeal, Sonos challenges this finding, which it
`frames as a claim construction issue. It is not. Instead,
`“whether the accused device [or a redesign] infringes
`properly interpreted claims” is a factual issue – which is
`
`
`4 Neither party argues that the prosecution history
`or any extrinsic evidence impact the proper construction.
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`SONOS, INC. v. ITC
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`11
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`just how it was presented to the Commission.5 Martin v.
`Barber, 755 F.2d 1564, 1566 (Fed. Cir. 1985). Thus, we re-
`view the Commission’s finding for substantial evidence,
`which we find.
`In support of its non-infringement finding, the Com-
`mission cited testimony from one of Google’s engineers and
`other testimony from Google’s expert. See J.A. 94-96. To-
`gether, these individuals explain that the redesign trans-
`mits an incrementing counter and that such a counter does
`not represent a time value – and, therefore, cannot repre-
`sent a time value indicated by a device’s clock. This consti-
`tutes substantial evidence for the Commission’s finding
`that the incrementing integer in ’258 NIA 1 is not “clock
`time information” as that term was construed by the Com-
`mission, based on the parties’ agreement. Thus, we affirm
`the Commission’s finding of non-infringement.6
`3
`The ’959 patent is directed to techniques for pairing in-
`dividual playback devices to create a multi-channel listen-
`ing environment and to performing equalization of audio
`data depending on the type of pairing. On appeal, Sonos
`challenges
`the
`Commission’s
`construction
`of
`
`
`5 Among the indications that this is a factual issue,
`and not a claim construction dispute, are that neither side
`sought to modify the agreed-upon construction but, in-
`stead, presented expert testimony on whether ’258 NIA 1’s
`transmitted integer satisfied the agreed-upon construc-
`tion.
`6 Given our conclusions, we need not reach Sonos’
`additional contention that the Commission erred in finding
`that the redesign would not infringe even if the increment-
`ing integer were “clock time information.” See Sonos Br.
`49-58.
`
`
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`SONOS, INC. v. ITC
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`“equalization,” recited in claim 10, as requiring “alteration
`of the relative strength of certain frequency ranges in the
`audio data by performing one or more of the following: ad-
`justing one or more parameters related to speaker drivers,
`such as gain, frequency response, channel output, phase,
`or time delay; adjusting amplifier gain of the playback de-
`vice; or using one or more filters.” J.A. 312 (internal em-
`phasis omitted). Sonos argues the Commission construed
`the term too narrowly. In Sonos’ view, “equalization” in-
`cludes any “modifying” of the output audio data, including
`changing of channel output without changing the strengths
`of a frequency range. Sonos Br. at 60-62.
`We agree with the Commission’s construction. Relying
`in part on Google’s expert testimony and various dictionar-
`ies, the Commission found that “‘[e]qualization’ is a well-
`known technique that allows one to emphasize or diminish
`a specific range of frequencies.” J.A. 307. The Commis-
`sion’s subsidiary factual finding on this point was not
`clearly erroneous. See DeLorme Publ’g Co. v. Int’l Trade
`Comm’n, 805 F.3d 1328, 1331 (Fed. Cir. 2015) (“We review
`claim construction de novo except for subsidiary facts
`based on extrinsic evidence, which we review for clear er-
`ror.”).7
`The specification confirms that the patent is not using
`the term “equalization” in a way that departs from its well-
`known meaning. In particular, the specification discloses
`that, when “both mid-range drivers and both tweeters have
`the same equalization (or substantially the same equaliza-
`tion), . . . they are both sent the same frequencies, just from
`different channels of audio.” ’959 patent 8:36-39 (emphasis
`
`7 Sonos did not meaningfully challenge this factual
`determination. See J.A. 307 (CALJ noting “[n]either Sonos
`nor Staff appear to dispute that ‘equalization’ has a well-
`known meaning to persons of ordinary skill in the art, at
`least outside the context of the patent itself”).
`
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`added); see also id. at 16:57-59 (“[T]he equalization of each
`S5 device is changed in an attempt to reduce or eliminate
`certain constructive or destructive interference.”); id. at
`12:15-16 (describing equalization in terms of adjusting
`bass and treble). These passages suggest that “equaliza-
`tion” necessarily includes alteration of a speaker’s frequen-
`cies and that changing the “channels of audio” does not
`necessarily result in “equalization.”
`The well-known meaning of the term “equalization” is
`also consistent with the specification passage Sonos argues
`“defines equalization to include changes to channel output
`and, separately, changes to frequency response.” Sonos Br.
`at 22; see also id. at 63 (quoting ’959 patent 16:20-27). That
`passage teaches:
`Changing the equalization of the playback device
`might include any of: turning on or off (or effec-
`tively muting) one or more specific speaker drivers,
`changing the channel output of one or more
`speaker drivers, changing the frequency response
`of one or more specific speaker drivers, changing
`the amplifier gain of any particular speaker driver,
`[and] changing the amplifier gain of the playback
`device as a whole.
`’959 patent 16:20-27. We do not read this passage as defin-
`ing “equalization.” “To act as its own lexicographer, a pa-
`tentee must clearly set forth a definition of the disputed
`claim term other than its plain and ordinary meaning” and
`must “clearly express an intent to redefine the term.”
`Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362,
`1365 (Fed. Cir. 2012). The passage on which Sonos relies,
`instead, merely provides a list of operations that equaliza-
`tion “might include.” This non-exclusive recitation does not
`evince the required clear intent to adopt a definition differ-
`ent from the term’s ordinary meaning. See J.A. 305-12
`(Commission construing “equalization” to mean “alteration
`of the relative strength of certain frequency ranges in the
`
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`SONOS, INC. v. ITC
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`audio data by performing one or more of the following: ad-
`justing one or more parameters related to speaker drivers,
`such as gain, frequency response, channel output, phase,
`or time delay; adjusting amplifier gain of the playback de-
`vice; or using one or more filters”) (internal emphasis al-
`tered).
`The language of other claims further supports the
`Commission’s construction of “equalization.” In particular,
`claims 2, 26, and 34 require “equalization” to be performed
`using a “pass filter to modify the audio data.” J.A. 10149
`(1:21- 29); J.A. 10151-52 (6:64-7:5, 7:50-59). Sonos agrees
`that a pass filter is a “mechanism for altering the relative
`strength of frequency ranges.” Sonos Br. at 70 (citing J.A.
`311 n.19). Thus, these dependent claims confirm that,
`while equalization can be performed using different mech-
`anisms (e.g., pass filter), the process of equalization is
`about altering the relative strengths (i.e., emphasizing or
`diminishing) of certain frequencies in audio.
`The prosecution history does not alter our conclusions.
`Sonos points to the examiner’s statement that “the subject
`matter ‘equalization’ is defined as including” the five tech-
`niques listed in the specification. Sonos Br. at 66-67 (citing
`J.A. 17198 n.2). The examiner was required to apply the
`broadest reasonable interpretation standard, which is dif-
`ferent from the Philips v. AWH Corporation standard the
`Commission and we apply. 415 F.3d 1303 (Fed. Cir. 2005);
`see also MPHJ TECH. v. Ricoh Americas Corp., 847 F. 3d
`1363, 1374 (Fed. Cir. 2017) (noting that at Patent Office
`“claims are given their broadest reasonable interpretation
`consistent with the specification”) (internal quotation
`marks omitted). In any case, “arguments based on the
`prosecution history which allegedly shows that the exam-
`iner viewed claim [differently] . . . are insufficient . . . to
`overcome our strong sense” of claim scope based on claim
`
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`15
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`language and the specification. Ethicon Endo-Surgery, Inc.
`v. U.S. Surgical Corp., 93 F.3d 1572, 1578 (Fed Cir. 1996).8
`In sum, we agree with the Commission that the term
`“equalization” means “alteration of the relative strength of
`certain frequency ranges.” Sonos does not dispute that, un-
`der this construction, ’959 NIA 4 does not infringe claim 10.
`Thus, we affirm the Commission’s finding that ’959 NIA 4
`does not infringe claim 10.
`
`B
`We turn now to Google’s cross-appeal, which challenges
`the Commission’s findings relating to the ’896 patent and
`’949 patent.
`
`1
`a
`While Sonos’ appeal with respect to the ’896 patent in-
`volved the claim element “transmitting . . . at least a sec-
`ond message
`containing
`network
`configuration
`parameters,” Google’s cross-appeal – of the Commission’s
`finding that its originally-accused products infringe –
`arises from the ’896 patent’s recitation of “receiving . . .
`user input indicating that a user wishes to set up a
`
`8 Sonos also argues its construction is supported by
`the examiner’s rejection of several proposed claims requir-
`ing “equalization,” based on references teaching “changing
`channel output only, with no mention of altering frequency
`response.” Sonos Br. 66-67. These rejections, Sonos as-
`serts, indicate that the Patent Office understood equaliza-
`tion as requiring either “changing the channel output” or
`“changing the frequency response. Id. As Google and the
`Commission point out, however, Sonos did not present this
`argument to Commission, see Google Br. 80; ITC Br. 42, so
`it was forfeited, see In re Google Tech. Holdings LLC, 980
`F.3d 858, 863 (Fed. Cir. 2020).
`
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`16
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`SONOS, INC. v. ITC
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`playback device to operate on the secure WLAN.” ’896 pa-
`tent 18:3-9. At the Commission, the parties agreed that
`“user input” means “an ‘objectively verifiable indication’ of
`the user’s desire to use the controller’s secure network.”
`J.A. 60329-31; J.A. 70103. The claim also recites “trans-
`mitting a response . . . that facilitates establishing an ini-
`tial communication path with the given playback device,”
`which the parties agree must occur after the “receiving”
`step. ’896 patent 18:14-16.
`The Commission found that Google’s originally-ac-
`cused products practice the “receiving” step based on a
`screen called “Device Found Screen,” which appears after
`a user selects on her mobile controller (e.g., a mobile phone,
`tablet, or laptop) a button that says “[s]et up new devices
`[i.e., speakers] in your home.” J.A. 220-21; see also J.A.
`225.
`
`
`
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`Case: 22-1421 Document: 90 Page: 17 Filed: 04/08/2024
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`SONOS, INC. v. ITC
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`17
`
`In the Device Found Screen, J.A. 221 (reproducing J.A.
`60501), which is shown above, the user is asked, “Would
`you like to set up this device?” and given the options of
`choosing “Yes,” “Skip,” or “Set up a different device.”
`J.A. 220-21. If the user selects “Yes,” the mobile controller
`retrieves “the Wi-Fi network that the mobile [controller] is
`connected to.” J.A. 227 (citing J.A. 70118 (452:7-453:5)).
`This information is “save[d] . . . so it can be fetched later in
`the setup process.” Id. Then, the mobile controller per-
`forms a step that the parties agree is the “transmitting”
`step, as it establishes the “initial communication path”
`with the new device (i.e., speaker) being added. J.A. 223.
`Thereafter, at a screen called “Connect to Wi-Fi
`Screen,” the mobile controller lists the Wi-Fi networks that
`are available for the new speaker device to connect to.
`J.A. 70078 (299-300).
`
`J.A. 222-23 (reproducing J.A. 60504).
`As shown above, on this list, the network that was pre-
`viously saved – that is, the network the mobile controller
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`18
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`SONOS, INC. v. ITC
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`was connected to when the user selected “Yes” at the De-
`vice Found Screen – is highlighted (in blue) and pre-se-
`lected among the list of available Wi-Fi networks.
`J.A. 70078-79; J.A. 70252.
`Also pertinent to the Commission’s analysis is a setup
`instruction that Google formerly provided to users, direct-
`ing them to “[c]onnect your mobile [controller] device to the
`Wi-Fi network that you’ll use for your speaker or display.”
`J.A. 226 (reproducing J.A. 50706). In the Commission’s
`view, this instruction confirmed that Google’s originally-ac-
`cused products “were designed to assume that the playback
`device [i.e., the new speaker] should be connected to the
`same network as the computing device[i.e., the mobile con-
`troller].” J.A. 226. It is undisputed that Google deleted
`this step from its published instruction prior to the Com-
`mission’s hearing and that the Commission was presented
`with no evidence that any user of the accused devices (i.e.,
`the mobile controllers) had ever seen the instruction. See
`J.A. 226 n.81.
`The Commission’s finding that Google’s originally-ac-
`cused products infringe the ’896 patent is based on its de-
`termination that a user’s selection of “Yes” at the Device
`Found Screen satisfies the “receiving” step. Substantial
`evidence supports the Commission’s application of the
`claim construction to the Google accused product. As the
`Commission explained, when a user selects “Yes” on the
`Device Found Screen, the accused products are “designed
`to assume that the user wishes to set up the playback de-
`vice on the same Wi-Fi network” the accused devices are
`actually connected to at that moment. J.A. 225.9 In
`
`9 We are not persuaded by Google’s insistence that
`the Commission clearly erred by allowing a mere “assump-
`tion” to serve as the objectively verifiable “indication.” The
`Commission relied on substantial evidence to reach its
`
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`19
`
`support of its conclusion, the Commission relied on testi-
`mony from Google’s expert, who opined that after the user
`selects “Yes” on the Device Found Screen, and thereafter
`clicks “Next” on the Connect to Wi-Fi Screen, the user “con-
`firm[s] that the network [he] wanted to use was high-
`lighted or selected” and there is no need to “make another
`selection.” J.A. 225-26 (citing J.A. 70252) (alterations in
`original). In other words, while the “receiving” step (in-
`cluding the required verifiable indication that the user
`wishes to set up a playback device on the controller’s net-
`work) is completed at the Device Found Screen, further
`confirmation of the fact that step has been completed is
`provided in connection with the Device Connected and Con-
`nect to Wi-Fi Screens.
`The Commission also cited Google’s setup instructions,
`which provide further support for its finding. See J.A. 226
`(reproducing J.A. 50706). The instruction expressly di-
`rected the user to “[c]onnect your mobile device to the Wi-
`Fi network that you’ll use for your speaker or display,” be-
`fore launching the Google Home application and reaching
`the Device Found Screen. J.A. 226. In this way, the in-
`struction to users is probative of the fact