HTC loses appeal at CAFC related to IPR of U.S. Patent No. 7,941,174

The outcome was that appellant HTC lost:



HTC Corporation and ZTE (USA), Inc. appeal a final
written decision of the Patent Trial and Appeal Board in
an inter partes review. Appellants argue that the Board
improperly construed the claim term “message” and erred
in finding that HTC failed to show that the prior art
anticipated or rendered obvious the challenged claims.
We find no error in the Board’s claim construction, and
substantial evidence supports the Board’s patentability
determination. We affirm.


HTC's arguments:


HTC raises three arguments on appeal.

First, HTC argues that the Board failed to construe the term “message”
according to its broadest reasonable interpretation.

Second, HTC contends that Baker anticipates the challenged
claims because it discloses reducing transmission
power at the beginning of a frame boundary in a UMTS
system, and therefore at the start of a message transmission.

Third, HTC challenges the Board’s finding that
Reed does not disclose determining a single headroom for
multiple data streams.




Within the discussion of anticipation:


The Board next considered whether Baker inherently
anticipates the “start of a message transmission” limitation.
A party seeking to establish inherent anticipation
must show that a person of ordinary skill in the art would
recognize that missing descriptive matter in a prior art
reference is nevertheless necessarily present. Cont’l Can
Co. v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991).
The Board found that HTC failed to show that the Baker
reference discloses a mobile station that transmits EDCH
messages, relying on an admission from HTC’s counsel
stating that he did not know whether “Baker [is] talking
about an EDCH message and not something else that can
be more than one frame.” Final Written Decision at *6;
J.A. 697.3



Footnote 3:


In its reply brief, HTC points to portions of CCE’s
expert declaration that generally discuss UMTS systems,
in particular that EDCH data messages can be transmitted
through DPDCH and DPCCH channels. Reply 13;
J.A. 2128, 2130. This is a new argument. HTC did not
argue before the Board that Baker teaches a mobile
station that transmits EDCH messages. J.A. 12 (“Petitioner
does not argue or identify evidence indicating that
the mobile station in Baker transmits an EDCH message.”).
We decline to consider new arguments on appeal
that were not raised below before the Board. Icon Health
& Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1040 (Fed.
Cir. 2017); see Singleton v. Wulff, 428 U.S. 106, 120
(1976).



There is a theme of "HTC inconsistency" --


HTC advances inconsistent claim construction arguments.
In its opening brief, HTC argues that the Board
failed to apply the broadest reasonable interpretation of
the term “message” by defining a message by its content
and by requiring a specific beginning and endpoint.
Appellants’ Br. 37–38. During oral argument, however,
HTC stated that the Board did not construe the term
“message” as having an ending requirement. Oral Arg.
3:06–3:34, http://oralarguments.cafc.uscourts.gov/default
.aspx?fl=2016-1880.mp3. Similarly, HTC’s opening brief
claims that the Board’s construction of message improperly
excludes single frame messages. Yet, at oral argument,
HTC conceded that the Board’s interpretation of “message”
did not exclude single frame messages. Oral Arg.
1:45–2:21. In its reply brief, HTC takes a different tack,
arguing that the Board improperly construed the phrase
“at a start of a message transmission” and failed to distinguish
between “message transmission” and “message.”
Reply 5–6.





HTC’s expert, Dr. Tim Williams, submitted two
declarations in this matter. Because Dr. Williams’s
discussion of Reed in his second declaration was inconsistent
with his first declaration, the Board found Dr.
Williams’s second declaration lacked credibility and
afforded it little weight.