Tuesday, December 01, 2020

Cisco loses at CAFC

The outcome: Cisco Systems, Inc. appeals the Patent Trial and Appeal Board’s final written decision holding Cisco had not proven that claims 1–9 and 12 of U.S. Patent No. 6,611,231 would have been obvious. For the reasons discussed below, we affirm. Background Cisco challenges the Board’s construction of “cross-correlated signal information that is received by” the claimed adaptive antenna. We review the Board’s ultimate claim construction de novo and any underlying factual determinations involving extrinsic evidence for substantial evidence. Paice LLC v. Ford Motor Co., 881 F.3d 894, 902 (Fed. Cir. 2018). Because Cisco’s petition was filed before November 13, 2018, we give claims in the unexpired ’231 patent their “broadest reasonable interpretation” consistent with the specification. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2016). Cisco contends the Board erred in construing the phrase “cross-correlated signal information that is received by said receiver using said adaptive antenna” as requiring that the signal information be cross-correlated before the signal information is received. It argues the claim language is ambiguous and, as properly interpreted, includes signal information that is cross-correlated after it is received. We do not agree Boilerplate language of non-limitation can be harmful: There is no requirement that “each and every claim ought to be interpreted to cover each and every embodiment.” PPC Broadband, Inc. v. Corning Optical Commc’ns RF, LLC, 815 F.3d 747, 755 (Fed. Cir. 2016). Regardless, nothing in the written description shows the patentee intended to deviate from the plain meaning of claim 1; there is no language in the written description suggesting that cross-correlating the signal information after it is received is important, essential, or necessary to the claimed invention. See Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1373 (Fed. Cir. 2014) (“[T]o deviate from the plain and ordinary meaning of a claim term . . . the patentee must, with some language, indicate a clear intent to do so in the patent.”). In fact, the written description expressly states that “the invention defined in the [] claims is not necessarily limited to the specific features or steps described.” ’231 patent at 28:66–29:2. The issue of waiver appears: Cisco further contends dependent claim 2 makes clear that claim 1 must encompass “cross-correlated signal information” that is cross-correlated after it is received. We will not reach the merits of this argument, that claim 2 causes us to deviate from the plain meaning of claim 1, because Cisco never raised this argument with the Board. Accordingly, we decline to consider Cisco’s argument made in the first instance on appeal. MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d 1284, 1294 n.3 (Fed. Cir. 2015).


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